From International to EU-Driven Statebuilding:

the Reorganization of Sovereignty in Post-

Dayton Bosnia and Herzegovina

Ph.D. Dissertation

Giulio Venneri

E-mail: giulio.venneri@sis.unitn.it

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DISSERTATION COMMITEE

Internal members:

Prof. Sergio Fabbrini, University of Trento (Chair)

Prof. Mark F. Gilbert, University of Trento (Advisor)

Prof. Laura Zanotti, Virginia Polytechnic Institute and State University (External Advisor)

External Examiners:

Prof. Joseph Marko, University of Graz

Prof. Patrice C. McMahon, University of Nebraska-Lincoln

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TABLE OF CONTENTS

Acknowledgements ............................................................................. ix

List of Abbreviations .......................................................................... xi

Abstract .............................................................................................. xiv

Introduction .......................................................................................... 1

1. The Bosnian case and statebuilding .......................................................... 2

2. Research questions .................................................................................... 6

3. Thesis structure ....................................................................................... 12

4. Methods and instruments ........................................................................ 15

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(Chapter I) Normative Principles and Operational Challenges of

Contemporary Statebuilding ............................................................ 19

1. Introduction ............................................................................................. 19

2. The concept of sovereignty in international relations: from Westphalia to San Francisco .......................................................................................... 21

2.1. Origins of the sovereignty ideal .............................................................. 22

2.2. Sovereignty in the rationalist accounts of international relations ........... 26

2.3. Hypocritical deviations, manipulations, ideational changes, or socially constructed developments of sovereignty? ............................................. 31

3. From the humanitarian intervention debate to the Responsibility to Protect...................................................................................................... 38

3.1. From the responsibility to protect towards a duty to prevent, already? .. 43

3.2. The sovereignty as responsibility ideal: consolidated ethics for contemporary statebuilding or mirage? .................................................. 46

4. Modeling sovereignty and institutions: what is critical in contemporary statebuilding? .......................................................................................... 50

4.1. The statebuilding dilemma I: together again? Reflections on the post-civil war reconstruction of collapsed multi-ethnic states ........................ 54

4.2. The statebuilding dilemma II: bottom-up vs. top-down approach .......... 56

4.3. The statebuilding dilemma III: technical international presence vs. complex post-war stabilization ............................................................... 59

5. Conclusions ............................................................................................. 63

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(Chapter II) The Bosnian Context .................................................. 68

1. Introduction ............................................................................................. 68

2. From international to EU-driven statebuilding: fifteen years of international presence in BiH .................................................................. 71

2.1. Ownership and sovereignty in the Bosnian stabilization process ........... 76

2.2. The DPA: strengths and weaknesses, criticism and appreciation ........... 81

2.3. The High Representative and the Bonn Powers ..................................... 84

2.4. Participation and nationalist partitions in BiH ........................................ 90

3. The statebuilding dilemmas and the Bosnian case ................................. 96

3.1. From the Western Balkans towards Western Europe: the good-neighborhood effect on BiH .................................................................... 98

3.2. One, two or three BiH? ......................................................................... 100

3.3. Reconciled people in a stable state: complexity in the Bosnian statebuilding project .............................................................................. 102

4. Beyond the sovereignty paradox: EU member-statebuilding in BiH ... 109

4.1. Peculiarities of EU-driven statebuilding ............................................... 110

4.2. The EU prospect of membership as a benevolent imperial projection . 117

4.2.1. Empire ‘through’ or ‘on’ states ........................................................... 118

4.2.2. The EU perspective: successes and failures ....................................... 121

4.3. The OHR-EUSR transition: from the Venice Commission assessment to the ‘five-plus-two’ test (2005-2009) ..................................................... 126

4.3.1. The call for ownership and the issue of the Bonn Powers heritage .... 131

4.3.2. The ‘5+2’ test ...................................................................................... 133

5. Conclusions ........................................................................................... 136

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(Chapter III) The Buck Stops Where? Responsibilities in the

Bosnian Constitutional Reform Process ........................................ 139

1. Introduction ........................................................................................... 139

2. The EU’s ‘hands-up’ statebuilding of BiH ........................................... 142

2.1. The EU’s step back from the Empire in Denial .................................... 144

2.2. Evading responsibilities, avoiding risks … and sovereignty is said to be again sacrosanct .................................................................................... 150

3. Conflicting methodologies for the constitutional reform process (2005-2007)...................................................................................................... 160

3.1. The negotiations for the ‘April Package’ and the US diplomatic initiative (November 2005 - June 2007) .............................................................. 162

3.1.1. The issues of entity voting and the vital national interest clause ........ 169

3.2. Schwarz-Schilling’s convention approach (2006-2007) ....................... 172

3.3. The last round of exploratory talks under the tenure of Schwarz-Schilling (April/June 2007) .................................................................................. 175

4. The 2009 attempt at the finalization of a ‘Dayton II’ constitutional compromise: from the Prud process to Butmir retreat .......................... 178

4.1. US diplomacy focuses again on the Bosnian dossier ........................... 182

4.1.1. The EU’s ‘package solution’ deal ....................................................... 184

4.1.2. The ‘constitution first’ approach proposed by the US ........................ 187

4.2. Joint EU/US pressure and the constitutional project presented at the ‘Butmir retreat’ (October 2009) ............................................................ 192

4.2.1. Criticism from Washington ................................................................ 195

4.2.2. Criticism from Europe ........................................................................ 198

4.3. The Russian non-variable...................................................................... 200

5. Conclusions ........................................................................................... 207

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(Chapter IV) A Story of Subverted Conditionality? The EU-

Sponsored Police Reform ................................................................ 210

1. Introduction ........................................................................................... 210

2. The sovereignty struggle through the police reform ............................. 212

3. Police restructuring as technical change: the picture presented from Brussels ................................................................................................. 217

3.1. Ashdown’s centralization strategy and the EC’s technical packaging of police reform ......................................................................................... 219

3.2. The difficult balance between strategic political objectives and technocratism ........................................................................................ 222

4. Police restructuring as an opportunity for ethnic gains: the picture seen from Sarajevo (and Banja Luka) ........................................................... 227

4.1. Conflicting ethnic aspirations over the reconfiguration of the Bosnian central state ........................................................................................... 229

4.2. A matter of sovereignty and survival: Milorad Dodik’s opposition ..... 234

4.3. A matter of law enforcement capacity: Miroslav Lajčàk’s public diplomacy .............................................................................................. 237

5. The compromise and the signature of the SAA .................................... 241

5.1. The Mostar agreement and the Sarajevo Action plan ........................... 245

5.2. The technical reform of the Police adopted in April 2008 ................... 250

5.3. ‘Conquered ownership’ vs. ‘octroyée ownership’ ................................ 253

6. Conclusions ........................................................................................... 259

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General Conclusions ........................................................................ 261

1. Implications on theoretical issues ......................................................... 261

2. Policy implications ................................................................................ 271

3. Perspectives on future research ............................................................. 274

(Appendix A) Framework Interview Questions .......................... 276

(Appendix B) List of Interviewees ................................................ 280

References ......................................................................................... 286

Notes .................................................................................................. 312

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To my mother and father

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Acknowledgements

Writing a PhD dissertation is an incredible adventure. This five-year path seems very long at the beginning. However, as demonstrated by decades of experience by hundreds of graduate students worldwide, months and weeks fly, especially when there is lots of field work and archival research to be undertaken. My experience has been intense, extremely demanding sometimes, due to the cosmic combination of challenges of diverse nature. Some of these challenges were related to academia, while others were more simply connected with that beautiful and surprising thing that is referred to as life. In spite of all the inevitable ups and downs, I feel blessed to have had many people by my side, new and old friends, who gave me their unconditional affection and generous support, thus turning my years as a PhD student into a beautiful, exciting journey, full of hope. I will never forget a moment of it.

There are many specific people that I want to thank. First of all, I wish to express once again all my gratitude to my supervisor, Prof. Sergio Fabbrini, who throughout these years has been constantly an example of commitment and academic rigor. His advice has been very precious; most importantly however, I cannot forget that his persistent exhortations pushed me forward all the time, especially in moments of doubt and uncertainty. For the same reasons, my thanks go to the other two members of my committee: my internal advisor, Prof. Mark F. Gilbert, and Prof. Laura Zanotti, my external advisor from the Virginia Polytechnic Institute and State University.

I am also grateful to the other members of the academic community in Trento: in particular, to Prof. Vincent Della Sala, who has been an inspiration through his professionalism, as well as to other scholars with whom I have exchanged ideas. These include: Prof. Roberto Belloni, Prof. Christopher Gilbert, Dr. Mattia Magrassi, and Dr. Jens Woelk.

A special thank also goes to other two people who contribute every day to the life of the School of International Studies in Trento, and are very special to me. Mark Beittel has been very patient and offered unique support for developing my academic writing skills. Moreover, apart from his help on thesis-related work, I cannot forget the very valuable time spent with him thinking about the structure of articles, conference papers, policy papers and all the publications and presentations that I have made in these years as graduate student (not to mention his precious advices in drafting applications). I also want to thank Silvia Tomaselli, senior administrator at the School, who has been incredibly patient and eased with great professionalism all the pain caused by bureaucratic burdens and complicated mechanisms that sometimes, unfortunately, characterize Italian universities. Silvia and Mark, the School has been a better place because you were around. You always had a strategy to suggest and, as true friends, a word of encouragement in difficult moments.

I am also extremely grateful to those institutions that have hosted me for the periods that I spent away from Trento, in ‘research abroad’. The Brussels School of International Studies (BSIS) at the University of Kent hosted me during 2007, providing me with an excellent environment to carry out my research activities on the EU institutions in Brussels, have efficient access to academic resources, and participate in its very stimulating graduate seminar series. Moreover, the BSIS also gave me the opportunity to make many friends from its amazing academic community. Amongst them, I need to mention Prof. Albena Azmanova, Prof. Tom Casier, Prof. Amanda Klekowski von Koppenfels, Lisel Hintz, and Prof. Harm Schepel. In 2008, I had the opportunity to be visiting researcher at the Buffett Centre for International and Comparative Studies (BCICS) at Northwestern University in Chicago, thanks to the generous hospitality of Prof. Hendrik Spruyt. My stay in Evanston was very

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productive thanks to the fantastic facilities that I had at my disposals. My days were even brighter once I met Father Tom at the Sheil Catholic Center, as well as Riccardo Masolo, Cristina Tealdi, and Tuan Hee at the Kellogg School of Management.

A special thank also goes to my colleagues from the SIS in Trento. In particular, considering their constructive criticism and genuine friendship, I keep a special place for: Serdar Altay, Andrea Ciambra, Paolo O. Ferrara, Dr. Gert Guri, Dr. Manuela Moschella, and Dr. Amr Yossef. If there is some good in this dissertation, it is also because of their attentive criticism.

Needless to say, I must express my gratitude to all those friends who have patiently encouraged me in difficult circumstances. Amongst them, I would like to mention (in alphabetical order): Dr. Berit Bliesemann, Prof. David Chandler, Alessia Erlingher, Nicola Maio, Elena Marchetti, Sergio Michelini, Roberto Paglialonga, Eleonora Pauletta D’Anna, Emanuele Rizzardi, and Emiliano Stornelli. Often, their smiles, hands on my shoulders, or simply a few words over the phone, helped me to overcome difficulties even when in my eyes these appeared to be insurmountable. Very warm thanks go to all the beloved friends from the Phoenix Institute: Paolo Barletta, Aaron Castillo, Dr. John X. Evans, Antonio De Napoli, Karla Gudiño and her family in Guadalajara, John-Paul F. Poppleton, Dr. Donald P. Stelluto, and Maricarmen Uribe Llamas.

There are also several people from the Italian Foreign Ministry who have supported my activities and encouraged me to pursue them in the difficult ballet between policy work and academic activities. The Italian Political Director, Amb. Sandro De Bernardin and Min. Plen. Diego Brasioli, my former Head of Office, have been two inspiring figures during my experiences as consultant for the MFA, and for my academic commitment as well. I will never forget the time spent with them, as well as with my other great colleagues and friends: Lorenzo Tomassoni, Domenico Fornara, Rodolfo Giannursini, Daniela Avitabile and Flavia Anfosso. I am also particularly attached to Amb. Guido Lenzi, Min. Plen. Maurizio E. Serra, Min. Plen. Michael Giffoni, and Cons. Luca Gori, who have often encouraged me and helped to overcome both policy and academic challenges. The same gratitude goes to Carol J. Volk and William M. Ayala from the US Department of State: we met as colleagues and quickly became very special friends. A special thanks also goes to Paola Pampaloni, who has been my caring Head of Unit at the European Commission since March 2010, and Luigi Soreca.

My field work in BiH and the rest of the Western Balkans has been turned into a constant ‘family’ experience, basically from day one of my very first trip to Sarajevo in June 2007. Gianni La Ferrara, Anela and Sabina Duman, you changed each of my visits to the region from a mere hunt for documentation, contacts, and people to interview into a journey in my second home (not to mention the beneficial effects of grandma Amira’s burek, the best in the whole Western Balkans). Hvala puno dragi moji, volim vas!

It is very difficult to find the words to express my gratitude to Dearbhla M. Doyle, Irish diplomat and beloved friend. I will always be in debt with you, Dearbhla. I will never forget your loving care, friendship, and patience. You have always been there, even in the lowest, most difficult moments. Thanks with all my heart.

I was a young undergraduate student at LUISS University in Rome when, eight years ago, I met Federico Eichberg. Federico, since then, you have been true friend, mentor, guide, and older brother. Thanks for inspiring my life and being always so generous with me.

My dissertation, as well as every thing that I have somehow managed to do well in my life, is dedicated to my parents. Their never-ending love is the true engine of my existence; their encouragements, prayers, and patience are the solid pillars on which I stand, every single day, in every single moment.

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List of Abbreviations

ARDA Accredital Regional Development Agency of Northwest BiH

BiH Bosnia and Herzegovina

CBB&H Central Bank of Bosnia and Herzegovina

CoE Council of Europe

COWEB Group for the Western Balkans (European Council)

CFSP European Common Foreign and Security Policy

CSCE Conference for Security and Cooperation in Europe (1973-1995)

DPA Dayton Peace Accords

EC European Commission

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ENP European Neighborhood Policy

EP European Parliament

ESDP European Security and Defense Policy

EU European Union

EUFOR European Force ‘Mission Althea’

EUPM European Union Police Mission to BiH

EUSR Special Representative of the EU to BiH

FBiH Federation of Bosnia and Herzegovina (Entity of the Bosnian state)

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FIPA Foreign Investment Promotion Agency (Bosnian state agency)

FYROM Former Yugoslavian Republic of Macedonia

IEBL Inter-Entity Boundary Line

GAERC General Affairs and External Relations Council (EU)

HDZ-BiH Croatian Democratic Union of BiH (Bosnian party)

HDZ-1990 Croatian Democratic Union 1990 (Bosnian party)

HR High Representative

ICISS International Commission on Intervention and State Sovereignty

ICG International Crisis Group

ICTY International Criminal Tribunal for the former Yugoslavia

IFOR Peace Implementation Force (NATO)

MEP Member of the European Parliament

NATO North Atlantic Treaty Organization

NERDA Northeast Regional Development Association

ODIHR Office for Democratic Institutions and Human Rights (OSCE)

OHR Office of the High Representative

OSCE Organization for Security and Cooperation in Europe

PDP Party of Democratic Progress (Bosnian party)

PIC Peace Implementation Council

PIC-SB Steering Board of the Peace Implementation Council

RDA Regional Development Agency (Bosnian agency)

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REDAH Regional Economic Development Association Herzegovina

REZ Regional Development Agency for Central BiH Region

RS Republika Srpska (Entity of the Bosnian state)

RSNA National Assembly of Republika Srpska

R2P Responsibility to Protect

RS Republika Srpska

SAA Stabilization and Association Agreement

SAP Stabilization and Association Process

SBiH Party for Bosnia and Herzegovina (Bosnian party)

SDA Party of Democratic Action (Bosnian party)

SDP Social Democratic Party of Bosnia and Herzegovina (Bosnian party)

SDS Serbian Democratic Party (Bosnian party)

SEE South-East Europe

SERDA Sarajevo Economic Region Development Agency

SFOR Peace Stabilization Force (NATO)

SIPA State Investigation and Protection Agency (Bosnian state agency)

SNSD Alliance of Independent Social Democrats (Bosnian party)

SoS Secretary of State (US Department of State)

UNMIBH United Nations Mission in Bosnia and Herzegovina

UNSC United Nations Security Council

USIP U.S. Institute for Peace

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Abstract

International statebuilding projects are characterized by a sovereignty paradox: external

actors compromise crucial aspects of sovereignty in order to rehabilitate domestic political

authorities in the full exercise of their legitimate governing prerogatives. Scholars also posit

that an understanding of sovereignty as responsibility provides this paradox with a

justification and an ethic. Reflecting on the statebuilding experience in Bosnia and

Herzegovina (BiH), with all of its contradictions and inconsistencies, two questions emerge.

Is the sovereignty paradox valid in all statebuilding projects? Do the ideas of sovereignty as

a capacity and a responsibility genuinely inform international policy-makers?

In the case of BiH, the EU complicates the sovereignty paradox. As a post-nation state

organization that ‘educates’ prospective members, Brussels promotes institutional

reorganization in a state that is still ‘in-the-making’ with a view to its integration into

supranational structures. While containing dispersions of sovereignty and suppressing

centripetal forces with the prospect of membership and the activities of its field offices, the

EU seeks to prepare autochthon elites to relinquish sovereign prerogatives and join the

supra-national Union. Acknowledging this qualitative difference between international

statebuilding projects and EU member-statebuilding initiatives, this thesis explores how

Brussels both ‘thinks and operates’. Building on the literature on sovereignty and

statebuilding, the empirical analysis examines two aspects of the current Bosnian reform

agenda: the constitution-making process and police reform.

By looking at the specific attitude of EU policy-makers towards the reform process of the

Bosnian constitution, this thesis sheds light on a peculiar ‘EU hands-up statebuilding’ approach. The ambiguity of throwing its hands up when called upon to take direct

responsibility for political reconciliation and constitutional reform conceals the inherent

difficulties for Brussels in resolving two crucial operational dilemmas: bottom-up vs. top-

down statebuilding, and technical presence vs. complex post-war stabilization.

The account of the reform of the Bosnian police shows that the tendency to throw the hands

up in a denial of responsibility for complex political undertakings is combined, to use another

powerful metaphor, with a ‘hands-off modus operandi’. The EU promotes its own

statebuilding policies by insisting on technical adjustments, attempting a process of

statebuilding by induction. Moreover, the EU-sponsored police reform is a case of

mismanaged conditionality. This reform was identified in Brussels as an essential pre-

requisite for the signing of the Stabilization and Association Agreement (SAA), but it ended

up provoking Bosnia’s most severe crises in its post-Dayton history. With the credibility of

the whole European integration project for BiH at risk, the EU refrained from further

confrontation and diluted its most critical demands, allowing local politicians to perform a

‘conquest’ of the reform agenda.

This thesis demonstrates that the institutional reconstruction of BiH has been pursued by the

EU with a risk-avoidance mentality. Brussels has procrastinated in facilitating a solution to

the internal sovereignty struggle and has distanced itself from sharing key political

responsibilities in the Bosnian stabilization process, revealing a tendency to ‘technify’ the

relationship with local elites. Furthermore, this detached position has allowed the EU to

avoid a more open confrontation with the residual influence of the United States in the

Bosnian statebuilding project.

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Introduction

At the Council of Feira in Portugal in June 2000, the EU announced for the first

time its commitment to guarantee the ‘fullest possible integration’ of the countries

of the Western Balkans region (European Council 2000). Exactly three years later,

that statement was followed by another solemn promise. Building on the

momentum of the imminent enlargement to Eastern European countries, in

Thessaloniki it was acknowledged that also ‘the future of the Balkans is within the

EU’ (European Council 2003: emphasis added). EU leaders thus chose to present

the next enlargement of the Union to the Western Balkans as an inevitable and

necessary development; three years later, they again confirmed that the future of

the whole region certainly ‘lies’ in the Union (European Council 2006b).

The challenge of the next EU enlargement to South-East Europe has

nevertheless been qualitatively different from the process between 1993 and 2007

that led to the integration of the states formerly belonging to the USSR’s sphere of

influence. Amongst other structural and socio-economic differences, most of the

countries of the Western Balkans – with the exception of Croatia and Serbia – can

still be described as ‘states in-the-making’, which remain subject to internal

sovereignty struggles among competing ethno-religious elites, face complex

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issues related to the integration of national minorities, and have not been fully

rehabilitated in the independent exercise of their governing prerogatives.

Focusing on the challenge of integrating new members into its

supranational structures, the EU’s stabilizing influence in the region differs in

approach, rationale, and ethics from ‘ordinary’ internationally-driven statebuilding

projects. The emphasis on the promotion of human rights, the rule of law, and

socio-economic recovery – which is also a characteristic of UN-led initiatives for

the reorganization of weak or failed states – should not obscure the fact that from

the Brussels’ perspective, stabilization in the Western Balkans can only be

achieved by creating domesticated member-states instead of restoring full

sovereignty and allowing local elites to exercise it in complete independence. The

rehabilitation of international and domestic sovereign capacities has not been the

main objective of the peculiar EU’s ‘member-statebuilding’ in the region. Rather,

the transfer of critical sovereign prerogatives from candidate countries to the post-

nation state Union removes the key object of controversy from local elites.

1. The Bosnian case and statebuilding

Bosnia and Herzegovina (BiH) is a prime case for understanding the EU’s

stabilization strategy for the Western Balkans. This country represents a complex

multiethnic polity, where political reconciliation has never been achieved and

where there is a constant ‘multilevel’ sovereignty struggle, ranging from central

state institutions down to the municipal level. BiH has not yet consolidated its

sovereign independence and remains exposed to domestic tensions between three

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competing ethno-religious groups: Bosniak Muslims, Catholic Croats, and

Orthodox Serbs.

Fifteen years after the signing of the Dayton Peace Accords (DPA),1 which

brought to an end the bloodiest conflict in Europe since World-War II, renewed

attention has been devoted to the stabilization of BiH. International concern about

the fate of this young and troubled multiethnic state waiting on the EU’s doorstep

has grown due to a combination of two factors. On the one hand, scholars have

developed new interest in BiH because of the political dynamics of the whole

Western Balkans. In recent times, there has been a new series of ‘territorial re-

adjustments’ in the region: Croatia is trying to speed up its efforts to join Slovenia

in the EU, Montenegro has formalized its peaceful separation from Serbia, and

Pristina has opted for a unilateral secession from Belgrade and started its own path

towards EU integration. Given its complex multiethnic and religious mosaic,

which makes the country resemble Yugoslavia on a smaller scale, BiH is the key

to regional territorial stabilization, both geographically and strategically.

On the other hand, beyond the dynamics that are specific to the Western

Balkans, the growing interest in the future of BiH is part of a global trend.

Numerous intra-state upheavals are threatening the stability of governments and,

consequently, of entire regions of the world. Weak or undemocratic regimes and

the increased number of failing and failed states have provided fertile ground for

the expansion of international terrorist networks and the consolidation of other

global security threats, such as those created by transnational criminal groups,

narco-terrorist clans, and even pirates (as the case of Somalia has dramatically

shown). In the words of Stephen Krasner (2004: 86) ‘the consequences of failed

and inadequate governance have not been limited to the societies directly affected.

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Poorly governed societies can generate conflicts that spill across international

borders. Transnational criminal and terrorist networks can operate in territories

not controlled by the internationally recognized government’.

The international arena is thus confronted with a series of unprecedented

destabilizing challenges. Most, if not all of these challenges have developed a

transnational dimension; however, their emergence has been possible in specific

weak institutional contexts. As a consequence, the topic of internationally-driven

statebuilding is again relevant for academics, policy analysts, and practitioners. It

is worth noting that in August 2004, in line with this trend, the US administration

decided to create ex novo a specific unit for peacebuilding and statebuilding

initiatives within the Department of State, which was inaugurated as the Office of

the Coordinator for Reconstruction and Stabilization.2

This increased interest coincides with the fact that statebuilding has

become ‘a corollary of anti-terrorism and counter-proliferation’ (Chalmers 2005:

iv). In line with this assessment, Francis Fukuyama has emphasized that, prior to

the attack on the Twin Towers and the Pentagon, the Western world had been

reluctant to tackle the internal crises of weak and failing states with substantial

and rapidly-deployed missions. However, ‘September 11 proved that state

weaknesses constituted a huge strategic challenge’ (Fukuyama 2004: xix),

especially when the institutional weaknesses undermining the stability of a

country are so dramatic that the state ends up being ‘hijacked’ by a terrorist

organization, as happened in Kabul under Taliban domination.

The problematic stabilizations of Afghanistan, Iraq, Haiti, Liberia,

Somalia, Sierra Leone, Sudan – just to cite the most striking examples – have re-

opened the debate on both the concrete operational modalities and the theoretical

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pillars upon which a foreign intervention in weak, collapsed, or failing states

should be built. With a history and characteristics that fall at the intersection of

these two points of debate, BiH represents a unique source of empirical data for

scholars and policy analysts, as well as lessons learned for practitioners. In other

words, if an ideal ‘learning curve’ of the international community3 on

statebuilding could be drawn, this would inevitably start ‘with the comprehensive

institutionalisation and proportionalisation of ethnicity in Bosnia’ (van Meurs

2004: 6).

Western governmental organizations have invested heavily in the whole

Western Balkans, turning the region into a ‘laboratory for European policies,

transatlantic solidarity and western values’ (Eichberg 2004a: 1). However, BiH

has thus far represented the most crucial test case of this laboratory, ‘a template

for new experiments in international administration and external assistance in

state reconstruction and post-conflict reconciliation’ (Chandler 2005c: 308). In a

recent assessment made by two American scholars, ‘$14 billion in international

aid’ turned BiH into ‘the most extensive and innovative democratization

experiment in history’ (McMahon and Western 2009: 69). In similar terms,

Sumantra Bose (2002: 3) has stressed that BiH has been ‘since the beginning of

1996 … the site of internationally sponsored political engineering on a remarkable

scale’. For many years now, the United Nations, the OSCE, NATO, and the EU –

as well as a myriad of international NGOs – have committed an extraordinary

amount of human and material resources to the reconstruction of BiH, achieving

unexpected successes but also experiencing striking failures.

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2. Research questions

Several studies have assessed the international experience in BiH and elaborated

guiding principles and praxes that could potentially be applied to other

statebuilding cases. The analysis thus far produced by both scholars and policy

analysts has addressed a wide range of items – ranging, for instance, from security

sector reform (King 2001; Orsini 2003; Heinz 2006; Perdan 2006; Muehlmann

2007) to democratization-related issues (Chandler 2000; Galen Carpenter 2000;

Domm 2007) – as well as the broader strategic discourse on the foreign presence

in a post-conflict environment (Cox 2001; Okuizumi 2002; Chandler 2004a;

Weller 2006; Belloni 2007).

Beyond technical and context-specific debates, this thesis addresses the

Bosnian case with a view to shedding light on the gaps in the literature on the

paradox of sovereignty and statebuilding and emphasizing the contradiction

inherent in the EU’s performance as a statebuilder. Scholars committed to

reconstructing the ethics and rationale of current externally-driven statebuilding

efforts generally agree that such initiatives inevitably entail a ‘sovereignty

paradox’: international missions compromise domestic sovereign prerogatives to

foster the institutional reorganization of a failing or failed state, democratize it,

and establish stable authorities and well-functioning institutions that at the end of

the process will independently exercise full sovereignty again, both domestically

and internationally. The goal of creating fully independent states justifies

intervention and prolonged interferences in the domestic jurisdiction of the target

countries. Moreover, the ethics of statebuilding – as identified by the sovereignty

paradox literature – is based on the hypothesis that a new vision of sovereignty is

genuinely informing external statebuilders.

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An understanding of sovereignty as an internationally shared

responsibility has been identified as the normative ground on which statebuilding

initiatives can be justified. This discourse was inaugurated by Francis M. Deng (et

al 1996: 70), who focused on the various issues related to conflict management

and peacekeeping initiatives in Africa. Based on a neo-communitarian

understanding of International Relations, Amitai Etzioni (2006) has claimed that

this vision contains in nuce the pillars that constitute the ‘ethics’ of contemporary

post-conflict peace and statebuilding. Moreover, it has been argued that the ideal

of a shared responsibility has been internalized by the personnel serving in

international institutions and the members of the Western diplomatic club. One

optimistic point of view by Dominik Zaum (2007: 237) suggested that this

concept has already influenced ‘statebuilding policies by providing a blueprint for

the institutions to be built, and by serving as a justification for the continued

governance of post-conflict territories by international administrations’.

Reflecting on this assessment in light of the statebuilding efforts in BiH,

with all of its contradictions and inconsistencies, two important questions can be

identified. Does the normative principle of sovereignty as responsibility inform

the various strategic efforts of current statebuilding missions worldwide,

including the EU’s member-statebuilding in the Western Balkans? If it is accepted

that the ideas of sovereignty as a capacity and a responsibility provide a

‘comfortable’ basis to justify peacekeeping and post-conflict statebuilding

interventions, have these principles also generated a new forma mentis amongst

statebuilders and a ‘blueprint’ that is generally complied with in the field?

Providing answers to these questions, this dissertation examines the

policies of the EU for the stabilization of BiH with a focus on the issue of

8

responsibility. The starting point of the analysis is that the ‘EU commitment to

BiH’ is characterized by additional complexity if compared with ‘ordinary’

international administrations and statebuilding missions working under the UN

umbrella. This additional complexity cannot be overlooked and minimized for the

sake of theoretical generalizations. Interestingly, Robert Keohane (1988: 379-380)

has cautioned against making overly ambitious generalizations: since ‘no general

theory of international politics may be feasible [it might be appropriate] to seek to

develop cumulative verifiable knowledge, but we must understand that we can

aspire only to formulate conditional, context-specific generalizations, rather than

to discover universal laws’.

Inquiring into the normative vision of sovereignty and the understanding

of post-conflict stabilization at the heart of EU initiatives to reorganize the

Bosnian state reveals a further element of interest in comparison with UN-led

operations. This project assesses how the current EU-driven statebuilding in BiH

is creating a ‘paradox within the paradox’ of sovereignty and statebuilding. When

the highly-intrusive statebuilding project was initially launched, the external

actors deployed in Sarajevo compromised Bosnian self-governing prerogatives in

order to foster a reorganization of domestic sovereign powers. However, a further

paradox has resulted from having a post-nation state organization, the EU, take

the lead in the Bosnian multiethnic experiment. While helping the reorganization

of the state by containing the dispersions and the asymmetries of sovereignty

produced by the implementation of the DPA, the EU actually prepares this state to

be part of a system of pooled sovereignty; in other words, Brussels educates

domestic elites to give up certain sovereign prerogatives when the appropriate

time to join the Union arrives.

9

EU-driven statebuilding ‘complicates’ the trajectory of sovereignty

rehabilitation in a post-conflict environment. The EU is a ‘post-nation state

organization’ that is based on the concentration of certain sovereign prerogatives

originally attributed to its member states (Della Sala 2006: 221). The whole

European experience has indeed been based on the idea of containing the excesses

of national governments through delegating to a supranational level decision-

making prerogatives on certain issues. During the early stages in the life of the

European Community, this philosophy was given such priority that efforts to find

a solution for the most critical problems concerning the democratic character of

the supranational integration process had to be delayed.

Recognizing the qualitative difference between EU member-statebuilding

and internationally-driven statebuilding, this thesis examines the strategies

elaborated in Brussels for the stabilization of BiH in order to understand whether

the EU has been able to overcome the operational limitations that normally affect

statebuilding missions. Inter alia, these include: excessive technocratism, a

disproportionate focus on institution-building rather than nation-building, scarce

attention to grass-roots reconciliation strategies, and bottom-up policies. In

addition to examining operational and strategic aspects, this thesis focuses on the

specific attitude that the EU has developed vis-à-vis the ideal moral imperative to

share with domestic elites the responsibilities related to stabilization in BiH.

As this thesis demonstrates, however, the strategic thinking taking place in

the ‘capital of Europe’ does not seem to be genuinely grounded in the sovereignty

as responsibility ideal. The institutional reconstruction of BiH is pursued with a

risk-averse mentality, which also allows the EU to preserve its own ‘no mistake

policy’ on the field. On the basis of this approach, the EU has been operating

10

predominantly through a set of technical and economic instruments that are

operationalized mostly by the European Commission (EC) – such as those falling

within the Stabilization and Association Process (SAP) – and through the

deployment of ESDP4 field missions and the offices of an EU Special

Representative (EUSR) that exercise various degrees of interference with the self-

governance of the host state. Moreover, Brussels relies on the membership

perspective as an indirect stabilization tool, which should enable, at minimum

cost, the domestication of local elites and the containment of their potential

nationalist and extremist drifts.

The ultimate goal of this unique combination of bargaining processes,

membership perspective, economic aid, incentives, technical assistance,

conditionality, and field presence is to prepare the elites of target states to

relinquish some crucial sovereign prerogatives and educate them to become active

members of the Union. In comparative perspective, the trajectory of sovereignty

in EU-driven statebuilding is thus different from that determined by UN-led

operations of a similar kind. The EU does not interfere with the self-governance

of the target state with the aim of fully restoring the empirical statehood of the

fragile South-Eastern European states; rather, it approaches its mission with a

more sophisticated mindset and a self-serving goal: to prepare political elites and

bureaucrats from the target states for membership. Nevertheless, the analysis

developed in this thesis clarifies how the EU modus operandi repeats the most

recurrent shortcomings of all international missions in crisis areas.

The EU accession process locks new members into a construction that is

qualitatively different if compared with ‘ordinary’ intergovernmental settings. The

EU indeed can be defined as being the aliquid novi (that something new) in the

11

complex firmament of multilateral organizations. The system that rotates around

the main Brussels-based institutions and the European Court of Justice (as well as

on the several executive agencies that have been created to strengthen the

integration and harmonization processes in the most diverse policy areas) has been

consolidated thanks to two unique legal pillars and one main governing principle.

The latter is the idea of subsidiarity, which regulates the EU’s decision making

processes. On the basis of this ideal Grundnorm, which constitutes the main

sociological rule in the communitarian life, the EU legal space is characterized by

the supremacy of EU law over member state law, and the direct effect (both

vertical and horizontal) given to whatever EU decision-makers produce as binding

norms.

At this stage, it is important to devote more attention to the specific role of

the EU in carrying out its member-statebuilding initiatives. There are several

processes that have driven the EU to expand its effort and expertise in the fields of

statebuilding and promotion of good governance practices, also beyond the range

of its near abroad. At the same time, it should not be disregarded that ‘if the

European Union has begun to develop a strategic identity, it is rooted in state-

building [and that] the need to respond to the failure of Yugoslavia has been a

driving force in the evolution of the Common Foreign and Security Policy’

(Chalmers 2005: iii). Furthermore, from an EU perspective, this research assumes

even more relevance after the entry into force of the Lisbon treaty, which provides

the legislative basis for the creation of a single EU foreign service5 with an

embassy network, to be led by a single EU Foreign Minister.

12

3. Thesis structure

This thesis is organized into four main chapters. Chapter I focuses on the concept

of sovereignty and its evolution in contemporary international relations. Different

visions of sovereignty are reconstructed by identifying the dominant trends in the

scholarly literature. The discourse on sovereignty is developed by highlighting the

major issues concerning both the external and the domestic aspects of state

sovereignty. By investigating both dimensions of sovereignty, this review

provides an understanding of the legal dimensions of externally-driven

statebuilding. Specific attention is devoted to the recent debate on the feasibility

of stretching the traditional characteristics of sovereignty towards a vision

encompassing the ideal of shared responsibility and an emphasis on the notion of

domestic authorities’ capabilities.

Moving to more policy oriented aspects of intervention, the second part of

Chapter I addresses the main elements of the statebuilding literature. The aim is to

show that international actors involved in post-conflict statebuilding efforts are

destined to face two crucial operational dilemmas. A comprehensive intervention

for the reconstruction of a failed or collapsing state needs to find a balance

between bottom-up and top-down policies, and between a technical presence and

a more complex and socially-oriented post-war stabilization. At the intersection

between these two ranges of strategic choices – which will be referred to as the

‘vertical’ and the ‘horizontal’ dilemmas of statebuilding – lies the grand

juxtaposition of technical institution-building on the one hand, and nation-

building on the other.

Chapter II identifies the main features of the Bosnian post-conflict

stabilization efforts, highlighting how the process of ‘ownership’ in the country

13

has passed from the international community to the EU without a decisive

involvement of the Bosnian constituent peoples and via the consolidation of a

strained relationship between autochthon elites and key international actors. The

transition from international to EU-driven statebuilding has nevertheless remained

incomplete. Emphasis is thus given to the activities and the position of the Office

of the High-Representative (OHR) in the complex framework of the multilateral

organizations operating on the ground in BiH. The OHR – which since 2002 has

been ‘double-hatted’ with the Office of the EUSR – still constitutes the leading

international agency in the Bosnian statebuilding project.

Building on the analysis of the current state of affairs in BiH, Chapter III

shows that in the parallel implementation of its statebuilding and enlargement

agendas, the EU reproduces some peculiarities of a neo-medieval empire. The

interference inherent in EU-driven statebuilding cannot be justified by the goal of

establishing the Bosnian authorities’ full and legitimate exercise of empirical

statehood. As emerges from the analysis of official documents and extensive

interviews with participants and observers to the EU-decision making processes in

both Brussels and Sarajevo, the EU intervention can be traced back to the

conviction that the various internal fractures and wounds of the Bosnian

multiethnic experiment can be healed only when the country’s sovereignty is

partially diluted within the greater European integration machine. By studying the

specific attitude of the EU towards the Bosnian constitution-making process, the

second part of Chapter III sheds light on the EU’s ‘hands-up statebuilding’

attitude.

Beyond the specific field of constitutional reform, Chapter IV examines

the other issue that has dominated the reform agenda in BiH for the last few years:

14

police reform. In particular, the analysis focuses on the conditionality that was

attached to this reform process by the EU. The development of such

conditionality confirms that Brussels has not been able to create a balance

between its own rigid technocratism and the more ideological elements of its

enlargement process. In other words, Chapter IV looks at the other side of what

could be metaphorically referred to as ‘the responsibility coin’ of externally-

driven statebuilding. In parallel with the reconstruction of the EU’s hands-up

attitude, an analysis of the reform of the Bosnian police shows that the tendency

to throw the hands up in a denial of responsibility for complex political

undertakings is combined with a, so to speak, ‘hands-off’ modus operandi. The

EU promotes its own statebuilding policies by demanding technical adjustments

and hoping that progress will follow automatically. However, Brussels pursues a

hands-off statebuilding strategy: partial and procedural adjustments serve the

purpose of hiding the long term metamorphosis to which the target state will

actually be subjected to through completion of the integration process.

Combining the empirical analysis developed in Chapters IV and V it is

possible to demonstrate that the institutional reconstruction of BiH is pursued by

the EU with a risk-avoidance mentality. In spite of its apparently dominant

position in the Bosnian stabilization process, Brussels has thus far refrained from

facilitating a resolution of the domestic sovereignty struggle and has distanced

itself from sharing key political responsibilities with local actors. Furthermore,

this detached position has allowed the EU to avoid a more open confrontation

with the residual statebuilding influence of the United States in the Bosnian

project.

15

4. Methods and instruments

This study has three key analytical aims: first, to provide an account of the

trajectory of sovereignty in post-Dayton BiH and identify the terms of the

‘paradox within the paradox’ in EU member-statebuilding; second, to reconstruct

the understanding of sovereignty and post-conflict stabilization shared by major

actors at EU level; and third, to highlight the main operational characteristics of

the EU commitment to BiH, with a specific focus on the problem of shared

responsibilities. The emphasis on specific reform processes is a methodological

choice that serves a precise analytical purpose. By analyzing processes in detail,

explaining their initial conceptual phases and evolution, and reconstructing the

various diplomatic machinations behind them, it becomes easier to uncover the

strategies, interests, and ideas of different actors.

The understanding of sovereignty and post-conflict stabilization informing

the EU’s initiatives in BiH is reconstructed by combining three types of inquiry.

EU official documents have been systematically examined to identify the

development of strategies and key-terminology that has been applied to the

Bosnian statebuilding experiment. Based on initial research at the EU digital

archives and in Brussels, particular attention has been devoted to specific terms

including: sovereignty, institutional reorganization, democratization,

normalization, post-conflict stabilization, consolidation of authority, ownership,

and reconciliation.

The documentation considered for this thesis relies predominantly on the

records from 2000 to the present. The choice of this start date is connected to

three key documents published in that year by the EU that formally inaugurated

the EU membership perspective for the whole Western Balkans region and also

16

clarified the specific EU commitment to BiH. The first document is the previously

mentioned final declaration of Feira (European Council 2000). The second is the

final declaration of the Zagreb Summit, which formally launched the SAP for all

Western Balkan countries (EU 2000). The third is the specific Road Map for BiH

– adopted in the same year – in which Brussels identified 18 essential steps that

BiH had to undertake before the work on a Feasibility Study for the Stabilization

and Association Agreement (SAA) could be formally launched (European

Commission 2000). These steps represent the formal ‘inauguration acts’ of the

EU’s commitment to the integration of the Western Balkans and BiH into its

supranational structures.

In order to develop a fuller understanding of the normative principles

informing the EU’s policy-making for BiH official documents are not sufficient.

Consequently, consideration has also been given to other sources. These have

mostly included: speeches and other public statements by decision-makers,

parliamentary debates and hearings (primarily at the European Parliament), policy

analysis published by independent experts on EU affairs, policy briefs circulated

by government-contracted experts, as well as media commentaries that have been

selected from both international and regional sources.

Finally, considering that important facets of the processes through which

decisions are made are not recorded in official documents or public statements,

the inquiry has been complemented by extensive interviews with participants and

observers of the EU decision-making processes that concern BiH (see Appendix B

for a detailed list of the interviewees). These have included permanent staff and

seconded personnel at the Brussels offices of the EU Commission (particularly

those serving at the Directorate General for Enlargement and that for External

17

Relations) and the EU Council (particularly at the Western Balkans Task Force);

Members of the European Parliament (MEPs) with a competence on enlargement-

related issues or with a role in the delegations for relations with the countries of

South-East Europe (SEE); and officials employed at the various EU agencies and

missions in BiH. Specifically, this last category includes: the Delegation of the

European Commission in Sarajevo6, the EU Police Mission (EUPM), the Offices

of the ‘double-hatted’ High Representative and EU Special Representative

(HR/EUSR), European Force Mission Althea (EUFOR), and the European

Gendarmerie Force (Eurogendfor).

A targeted round of interviews has also been undertaken with member

states diplomats employed at their respective national embassies in Sarajevo, as

well as at their Permanent Missions to the EU in Brussels. Extensive contacts

have been established for the most part with those Brussels-based diplomats who

serve in COWEB.7 The acronym COWEB is used in the EU jargon to refer to the

group of national diplomats who discuss Western Balkan issues and routinely

support the work of the Permanent Representatives Committee, also known as

COREPER II.8

Each interview was ‘semi-structured’, thus combining both open- and

closed-ended questions. At first glance, the aim of reconstructing the normative

vision of sovereignty and post-conflict stabilization informing EU policy-makers

and the strategies attached to the various EU policies for BiH would have

suggested conducting unstructured interviews. However, the risk of such a choice

was seen as twofold. Firstly, totally unstructured interviews might end up

focusing on issues that are only of marginal interest for the interviewer, especially

when the interviewee has vast professional competences and deals with several

18

technical or geographical dossiers. Secondly, this might have impeded a

systematic reconstruction of the normative principles and ideas concerned. In

order to avoid vagueness and ambiguity, interviews were conducted by respecting

a predetermined set of criteria (see Appendix A).

19

(Chapter I)

Normative Principles and Operational

Challenges of Contemporary Statebuilding

1. Introduction

A sequence of dramatic crises – from Afghanistan to Somalia – has reopened the

debate on both the operational modalities and conceptual pillars upon which

foreign intervention in weak, collapsed, or failing states should be based. While

policy analysis has focused on technicalities related to capacity- and institution-

building, the scholarly literature has devoted more attention to the concept of

sovereignty, in an attempt to consolidate new possible interpretations. This

chapter reconstructs the main features of both these debates.

The first part of the chapter is devoted to the idea of sovereignty. The

recent debate has mostly revolved around the possible reinterpretation of

sovereignty as an internationally shared responsibility. In this regard, two major

positions have emerged. On the one hand, libertarians and neo-conservatives have

tried to expand the idea of sovereignty as responsibility to legitimize even

preventive international action. On the other hand, neo-communitarian scholars

have tried to contain such interventionist tendencies by emphasizing the idea of

responsible international action, and by narrowly interpreting the responsibility to

20

intervene by international actors and coalitions of states. The point where these

contrasting interpretations converge reveals a key challenge of contemporary

international politics: how to encourage governments to act in a more responsible

way both internally, towards their constituent people, and internationally, in their

concerted activities for the promotion of peace and the consolidation of good

governance practices in crisis areas and post-conflict environments. Apart from

being crucial for national governments, the issue of responsible intervention is

relevant also for all international intergovernmental organizations that carry out

peacekeeping and peacebuilding activities.

The idea of sovereignty as an internationally shared responsibility, which

has been widely debated over the last decade, represents a powerful concept. This

innovative interpretation of sovereignty fosters the idea of responsible action, by

shedding light on the vertical bond between political leaders and their

constituency, as well as on the horizontal relationships between national

governments and other relevant multilateral actors that are part of the

international community. In operational terms, if genuinely internalized and truly

implemented in practice, this new normative understanding of sovereignty could

resolve the tension between the residual elements of the Westphalian world and

the ideal global system of collective security centered on the primacy of the

United Nations Security Council (UNSC) that has never been fully implemented.

This vision provides a promising moral justification for contemporary

peacekeeping and post-conflict peace and statebuilding efforts.

In order to understand all the aspects of the sovereignty as responsibility

concept, the literature review that follows proposes a reconstruction of

mainstream theories of sovereignty. Highlighting both the dynamics internal to

21

nation states and international aspects of sovereignty, the analysis shows the main

evolutions that have characterized this ‘key rule of the game’ in world politics

through the centuries. Moving from the field of ideas and normative principles

related to sovereignty into the arena of actual policy-making and intervention, the

second part of this chapter analyzes the most recent literature on statebuilding

with a view to identify the key operational dilemmas that characterize the work of

international missions today.

2. The concept of sovereignty in international relations:

from Westphalia to San Francisco

Introducing their seminal work on State Sovereignty as Social Construct, Thomas

Biersteker and Cynthia Weber (1996: 2) cautioned that ‘attention to sovereignty

tends to raise more questions than it answers’. More recently, John Boli (2001:

54) has recognized that probably ‘where sovereignty is located is [still] an open

question’. Describing ‘the surrender of sovereignty to governance by international

actors’, Francis Fukuyama (2004: 132) has depicted East Timor as a reality from

which sovereignty was removed and ‘located on a ship floating in the harbour

outside the capital of Dili’. The concerns voiced by such respected scholars

confirm that sovereignty remains one of the most complex and debated issue in

international politics; however, they should not discourage. After all, as Jarat

Chopra and Thomas Weiss (1992: 102) have explained, the complexity and the

doubts underpinning the concept of sovereignty simply stem from the fact that

22

this concept is ‘a legal fiction that continues to evolve [but remains] the best

mechanism for organizing human society at the global level’.

The concept of sovereignty is one that scholars and practitioners have

defended, contested, updated, analyzed and even denied for over four centuries.

Nevertheless, the system of sovereign states remains the most accepted way of

organizing human relations, which has endured for centuries precisely because no

concrete alternatives have emerged, but also because it continues to enjoy

generalized bottom-up support. Those who have opposed sovereign states or

manifested their dissent have mostly been groups promoting a secessionist cause

and striving to establish a new independent state. Therefore, unless humanity one

day rejects the system of sovereign states and replaces it with an alternative

structure, as Jo-Anne Pemberton claims, ‘we may attempt to further civilize this

system through adding to and thickening the responsibilities of states to each

other and to humanity in general’ (2008: 215, emphasis added). Recognizing the

validity of this statement, the issue of shared responsibilities will be put to test in

the empirical chapters of this thesis.

2.1. Origins of the sovereignty ideal

The concept of sovereignty virtually did not exist in the realm of political thought

until the fall of medieval Christendom. At that time, all of the tensions between

the Papal authority and the emperors were indeed ‘not about sovereignty but

about political predominance’ (Smelser 2001: 78). Some scholars argue that the

modern international community actually has its origins in the relations between

the three sovereign imperial entities that arose in the ninth century: the

Carolingian, the Islamic, and the Byzantine (Ago 1977). Nevertheless, the

23

majority of theorists acknowledge that only when the Peace of Westphalia was

agreed upon (at the end of the Thirty Years’ War, 1618-1648) both the concept of

sovereignty and the configuration of the modern state emerged. The settlement

provided a series of secular elements, upon which new forms of political power

could be constructed and the religious basis for authority replaced. Leo Gross

(1948: 28) defined the 1648 peace agreement as ‘the majestic portal which leads

from the old world into the new world’. In the old world, kings could indeed

declare but not create positive law, as they were themselves bound by it; in the

new world, sovereigns had the right to create law and the duty to enforce it, not as

if they were necessarily above the law, but as original sources of it.

The conventional view that depicts the 1648 Peace of Westphalia as the

origin of the modern system of sovereign states has been contested by part of the

literature. Amongst other International Relations scholars, Stephen Krasner (1993:

244) has argued that the treaties of Münster and Osnabrück were actually ‘less

consistent with modern notions of sovereignty’ than the precedent Augsburg

Peace of 1555. This critique can be accepted. Indeed, if the Peace of Westphalia

has always been defined as a watershed in the history of political theory and,

particularly, in the development of the concept of state sovereignty, it cannot be

disregarded that the seeds of this institutional revolution had actually been sown

almost one century earlier. In spite of the unconditional support of all the German

Catholic Princes, in the first half of the sixteenth century, the attempt by Charles

V to defeat the Protestant heresy failed. The conflict was ended with the 1555

Peace of Augsburg. The core concept of this peace agreement can be synthesized

in the Latin formula cuius regio, eius religio. This expression (which literally

means ‘whose region, is the religion’) implicitly acknowledged the right of each

24

entity with a defined territory and an established governing authority to develop

its autonomy from external powers, the Catholic Church in particular (Smelser

2001: 14706-9).

An interesting debate on this specific issue has also taken place between

two eminent American scholars of the last century: Charles Tilly and Joseph

Strayer. The latter claimed that most of the preconditions that allowed the

sovereign state to emerge after Westphalia as the dominant form of political

organization could already be identified during the fourteenth century. In contrast

with this view, Tilly (1975: 25-31) has counter argued that alternative forms of

political organization – such as the Papal state, trans-boundary commercial

federations, and the feudal structure – were not inevitably bound to fail, as it

might seem from a superficial analysis.

Proper point of reference or not, as has been made clear in the

contemporary academic debate (Krasner 1993; Philpott 1999; Osiander 2001),

Westphalia has nonetheless become an icon for scholars. The Westphalian system

included relatively large territorial units, which were ruled by a central sovereign

authority. A core peculiarity of such authorities was that there was no formal

control binding their freedom. More precisely, sovereign states emerged as

supreme authorities ruling over a given territory (internal aspect of sovereignty)

but also as units obliged not to interfere in each others’ internal affairs

(independency coincides with the external aspect of sovereignty: superiorem non

recognoscent). In other words, the sovereign power cannot be challenged from the

inside and it can respond to outside challenges by resorting to the use of force, in

addition to diplomatic means.

25

The arrangement which emerged at Westphalia can be labeled a European

system. Based upon the European common heritage, Westphalia gave rise to the

two key concepts of sovereignty and territoriality, thus further exacerbating the

divergence between the European world and the rest of the planet. Meanwhile, the

European powers did not refrain from conducting their ‘international public

relations’ in terms of – paraphrasing a well-know expression coined by Hobbes –

homo homini lupus. Following Westphalia, recourse to war remained a clear and

undisputable foreign policy option. However, war could only occur between units

(the sovereign states) that had the power to mobilize organized and loyal forces.

Self-defense became an inextricable prerogative of states. More precisely,

at the time of Westphalia war was mostly a means to secure boundaries,

territories, and resources. But after the first industrial revolution and the

emergence of what eminent historians like Pierre Renouvin called ‘the doctrine of

colonies’ (1961: 45-60, my translation), war also became a way to defend and

ensure economic interests and commercial networks established overseas. These

overseas interests were perceived by European governments as being vital for

their domestic welfare. However, in addition to being driven by pragmatic

interests, the idea of a civilizing mission was more or less genuinely shared

amongst the ruling elites of the Christian-European powers.

Those who exercise sovereign powers have always been described as

holding supreme authority, and thus, as having by definition the ‘supremacy in

respect of power, domination or rank’ in a given community (1970: 489).

Supremacy is intended as a situation of pre-eminence, which internally should

coincide with an ‘absolute and perpetual power of both making and unmaking

26

laws’ (Kuper 1996: 835). In Latin, the sovereign was indeed the superānus, the

one above all others who held the supreme powers (summa potestas).

Against this backdrop, a straightforward but comprehensive definition of

sovereignty could sound like ‘supreme authority within a territory’, as most

recently re-proposed by Daniel Philpott (2001). This short but effective

formulation has developed a broad consensus. Most scholars actually have no

doubt that such an expression perfectly describes the system of sovereign states

that emerged in Europe after 1648 and that has survived with minimal changes for

almost four centuries: a structure composed of relatively large territorial units

internally organized under a central sovereign authority. This definition

encompasses three distinctive elements, which are each equally important in

identify sovereignty: authority, supremacy, and territoriality. Ideas on each of

these elements have gone through several evolutions; however, such a

combination of terms remains optimal to describe state sovereignty and,

indirectly, to identify the essential peculiarities of both the international

community and its juridical order.

2.2. Sovereignty in the rationalist accounts of international

relations

In the theoretical debate developed by contemporary International Relations

scholars, the position of sovereignty has traditionally been linked to the

discussions on the state. This might well be explained – using again the words of

Thomas Biersteker (2002: 157) – by the fact that ‘state and sovereignty are

[indeed] mutually constitutive concepts’. A typical example of how sovereignty

was attached to states as a fixed and exogenous attribute can be found in

27

Morgenthau’s seminal work on the Politics Among Nations. Being concerned

‘with human nature as it actually is, and with the historic processes as they

actually take place’, Morgenthau (1978: 4) recognized sovereignty as

synonymous with independence, equality, and unanimity. Moreover, he depicted

its consolidation as a process that elevated into a legal theory a series of political

facts. The evolution of sovereignty coincides with the emergence of a doctrine

mirroring the relations between different political units at the end of the Thirty

Year’s War. According to Morgenthau (1978: 329), such a doctrine provided

simple facts with ‘both moral approbation and the appearance of legal necessity’.

Attaching to sovereignty the role of a key rule of the game, Morgenthau

minimized the analytical problems related to the theoretical evolutions of the

concept. Nevertheless, hypothesizing a contrast between the structure of

international relations (with all its norms, concepts, institutions and procedures)

and the reality of international politics, he described in very effective terms the

tension between modern international law and the social dynamics of the state

system that emerged after Westphalia. Sovereignty is presented as lying exactly at

the crossroads of laws and anarchy. According to Morgenthau, modern

international law is based on two core assumptions that cannot escape a subtle but

substantial logical incongruity: rules (customary or treaty-based that they might

be) emerge by imposing constraints upon nation states; at the same time, being

sovereign, these units remain ‘the supreme law-creating and law enforcing

authorities’ of a decentralized system (Morgenthau 1978: 329).

Classic realism developed along the idea that sovereign units live in an

international system characterized by anarchy; this would have always worked as

a ‘permissive condition’. Viewed this, the complete decentralization of the

28

legislative, the judicial, and the executive functions of the international system

represent the clearest manifestation of sovereignty.9 The assumptions of classic

realism were challenged for the first time in the 1970s by Robert Keohane and

Joseph Nye (1972) who emphasized the growing interdependence between states,

transnational relations and non-state actors alike, in particular, multinational

corporations. The two scholars proposed a vision of states as being immersed in

an environment based on complex and growing interdependence. Initially,

‘attacks on the state-centric paradigm implied that state sovereignty was being

eroded by economic interdependence, global-scale technologies, and democratic

politics’ (Thomson 1995: 215).

The challenge to classic realism that was put forward by the advocates of

liberal interdependence faced a first substantial set of counter arguments in 1979,

when Kenneth Waltz elaborated his Theory of International Politics. The basic

assumption of classical realism was that ‘the international system is anarchical, in

the sense that it lacks central authority to impose order; … in such a system states

are primarily interested in their own survival’ (Burchill 2005: 190). Waltz

developed this basic framework by introducing the concept of hierarchy. In order

to ensure their survival in the anarchical international order, states tend to

maximize their power, in particular their military power; while doing so, they tend

to develop a ‘defensive positionalist attitude’. If on the one hand Waltz (1979: 93,

94) acknowledged that ‘states are not and never have been the only international

actors’, on the other hand he admitted that ‘so long as the major states are the

major actors, the structure of international politics is defined in terms of them’.

Confronted with Waltz’s structural realist proposals, the liberal critique to

classic realism partially rounded off its edges and went back to recognizing

29

sovereign states as the main actors in an inherently anarchical world politics.

Indeed, in After Hegemony, Keohane (1984) focused on the core challenge of

explaining cooperation under anarchy. Realists had widely argued that, in the

chaotic international system, cooperation is only possible under pressure from a

hegemonic power that imposes institutions that are functional to its own strategic

concerns. The proposals put forward by neoliberalists tried to go beyond the

neorealist view. A more detailed account of the neoliberalist arguments is beyond

the scope of this review. What is relevant is that by accepting some of the basic

assumptions of the neorealist tradition (e.g. the international system is anarchical,

and states, which are essentially self-interested actors, are the most important

units of it) Keohane and other scholars supporting the liberal interdependence

theory ended up reviving a traditional view of sovereignty.

This evolution has been traced by Janice Thomson (1995: 215-216) back

to the empirical and theoretical challenges brought against the original

formulation of liberal interdependence theory. This thesis can be criticized by

arguing that the post-World War II growing interdependence was not, both in

qualitative and quantitative terms, more capable of eroding states’ sovereignty

and centrality than previous waves of globalization. Amongst other scholars who

support this critique, Krasner has pointed out that liberal theorists tended to be

over-focused on the problem of control and consequently overemphasized

erosions of sovereignty in this sense. Furthermore, he has argued that: first,

control and authority of government have always been challenged, evidence

shows that the flow of both international capital and immigrants was more

overwhelming during the second half of the eighteenth century than it is today

(Krasner 1999b: 13); second, the problem of control is very different from the one

30

of authority, as a consequence, claims on the erosive effects of globalization on

states sovereignty are mostly ‘historically myopic’ (Krasner 1999a: 34); third,

‘interdependence sovereignty, or the lack thereof, is not practically or logically

related to international legal or Westphalian sovereignty’ (Krasner 1999b: 13).

Another critique against the liberal interdependence theory can be made

by arguing that interdependence is a condition that states spontaneously allow in

the exercise of their power and in reflection of their own interests. This argument,

which was developed by Robert Gilpin and the scholars following Kenneth

Waltz’s neorealist path, has been partially re-proposed by Thomas Heller and

Abraham Sofaer (2001). The majority of globalization studies have insisted on the

idea that the decline of the centrality of states in a world of growing

interdependence would inevitably be accompanied by the erosions of sovereignty.

Is sovereignty substantially fading away? States have increased

enormously their international commitments and keep delegating to supranational

organizations (as well as private non-governmental bodies) the responsibility for

several activities of transnational nature. However, these developments can be

seen as ‘an expression of the value of sovereignty [rather] than a threat to its

continuing importance’ (Heller and Sofaer 2001: 31). Moreover, the tendency that

states have to delegate functions to international agencies or other entities does

not affect the key attributes of sovereignty; on the contrary, it would ‘enhance the

capacity of states (and the international system) to cope with complex problems

requiring transnational or private-sector management or expertise’ (Heller and

Sofaer 2001: 32).

Deconstructing authority into two dimensions, Thomson suggests that

while ‘sovereignty constitutes the state system as the meta-political authority in

31

world politics’, there is also a functional dimension of authority that can vary over

time in terms of both extensiveness and intrusiveness. And if it is true that the

market and non-state actors have increased their role in the economic sphere, it is

equally true that the ‘state’s intrusion into formerly private aspects of people’s life

is reaching astonishingly high levels’ (Thomson 1995: 224).

2.3. Hypocritical deviations, manipulations, ideational changes, or

socially constructed developments of sovereignty?

Analyzing the most critical points of the liberal interdependence literature, it has

been possible to identify an excessive focus on control as the main weakness of

this theoretical strand. Sovereignty is indeed not just a matter of mere control;

rather, it represents a construction simultaneously encompassing authority,

control, and legitimacy. In his extensive academic output, Krasner has

emphasized how these three elements can further lead to four different facets that

do not necessarily co-vary: international legal sovereignty, Westphalian

sovereignty, domestic sovereignty, and interdependence sovereignty. Each of

these pillars can be differentiated by following two paths: on the one hand,

differences emerge by looking at the features of authority, control, and legitimacy

referred to above; on the other hand, different peculiarities emerge by examining

the logics underpinning them.

As far as the first set of characteristics is concerned, Krasner clarifies that

the problem of control is central only to interdependence and domestic

sovereignty: while the former refers to the capacity of government to control

flows across national borders, the latter is concerned with exercising power over

the domestic constituency. Therefore, it is only by looking at international legal

32

and Westphalian sovereignty that it becomes possible ‘to understand what

sovereign statehood has meant in actual practice’ (Krasner 1999b: 4). Krasner

seeks to demonstrate that the international environment, like every political or

social space, is dominated by the conflict between logics of consequences and

logics of appropriateness; it is such a conflict, and the supposed supremacy of the

logics of consequences, that makes an organized hypocrisy emerge (Krasner

1999b: 66). While the idea of appropriateness implies an understanding of

political actions as the ‘product of rules, roles, and identities that stipulate

appropriate behavior in given situation’ (Krasner 1999b: 5), consequences instead

refers to the evaluation that political actors make when they rationally consider

expected outcomes and their own sets of preferences. In other words: ‘organized

hypocrisy occurs when states say one thing but do another; they rhetorically

endorse the normative principles or rules associated with sovereignty but their

policies and actions violate these rules’ (Krasner as quoted in Kreisler 2003).

How can we explain the supremacy of the logics of consequences?

Krasner invites to consider separately rules and rulers. On the one hand, dealing

with rules, he traces the predominance of the logics of expected consequences

back to the key peculiarities of the international community: international rules

can be highly contradictory, thus domestic logics of appropriateness tend to

overwhelm international ones in the calculations made by political leaders; this

scheme is further complicated by the power asymmetries that characterize the

international arena. On the other hand, when focusing on the rulers, Krasner

(1999b: 7) emphasizes that logics of expected consequences prevail because

‘rulers want to stay in power and, being in power, they want to promote security,

prosperity, and values of their constituents’. So, for instance, while the logic of

33

appropriateness of Westphalian sovereignty is probably the most recognized by

policy-makers, it has also been one of the most violated.

Here, the hypocrisy of rulers becomes evident: given the anarchical

configuration of international society, actors can breach rules when they start to

feel that their adherence to a given set of international norms is far from

maximizing their advantage. Rulers have often pushed Westphalian sovereignty

aside, abandoning ‘the principle that external actors should be excluded from

authority structures within the territory of their own or of others’ (Krasner 1999b:

8). Actually, as Krasner (1999b: 24) further clarifies, ‘neither the Westphalian nor

international legal sovereignty has ever been a stable equilibrium from which

rulers had no incentives to deviate’.

If in Krasner’s eyes sovereignty has offered to political leaders the

possibility to act in an opportunistic manner, in the vision proposed by Immanuel

Wallerstein the whole of modern history becomes a tale of manipulated

sovereignty, in which the stage is dominated by groups of capitalist entrepreneurs

who substantially pull the strings of political relations. In synthesis, instead of

depicting state sovereignty as an organized hypocrisy, Wallerstein presented it as

a manipulated fiction that has perfectly served the interests of dominant

capitalists, and that actually can be consolidated only in accordance with the

acquiescence of private interests. Wallerstein did not go as far as Marx did when

he presented the modern state merely as the instrument that allows the bourgeoisie

to dominate over the proletariat. Nevertheless, he re-proposed some core ideas

that had emerged in the Manifesto of the Communist Party. For example,

Wallerstein (1999: 27) claimed that one of the most evident advantages that

34

capitalists obtain from the state is order and, in particular, ‘order against the

insurgency of the working classes’.

Wallerstein’s core thesis was that concepts such as sovereignty, nation-

state, and international environment cannot be fully understood if one does not

link the debate on inter-state relations with the discussions on the relationship

between nation-state’s public authorities and the capitalist world, with all its

actors, institutions, forces, and mechanisms. Wallerstein suggested that these two

debates are intersected by the idea that the ‘political system of sovereign states

within an interstate system, of states and an interstates system both having an

intermediate degree of power, suited perfectly the needs of capitalist

entrepreneurs’. Based on this understanding, a boost to the consolidation of the

system of nation states would have been given by the need, shared among early

capitalists, to have public authorities functioning as diligent and low-cost

watchdogs. States would have preserved capitalists from losing their accumulated

capital. Indeed, ‘capital can be stolen; it can be confiscated; it can be taxed’. By

strengthening the role of the state, capitalists saved on resources otherwise used to

secure ‘privately’ their accumulated capital. In line with this perspective, taxation

has emerged as a fair price for two crucial services provided by the state: the

protection of capital from being stolen, and defense against ‘the illegitimacy of

confiscation via the establishment not only of property rights but [also] of the rule

of law’ (Wallerstein 1999: 23-24).

In addition to those two safeguards that states are able to offer, Wallerstein

believed that capitalists have happily coexisted with states due to the capacity of

public authorities to also provide other types of services. In the first place, the

state was identified by capitalists as an effective structure from which to protect

35

against the uncertainties generated by a truly free market. Wallerstein (1999: 25)

claimed that ‘the free market is the mortal enemy of capital accumulation’.

Amongst other ways of interfering with and undermining the fluidity of the free

market, states could abuse their authority to impose legal constraints, thus

enabling national entrepreneurs to enjoy a protection that they would not

otherwise legally have.

Apparently in line with Krasner’s idea of sovereignty as an organized

hypocrisy, Biersteker stresses that ‘[s]tates are hypocritical and have always

intervened in each other affaires’. Nevertheless, he criticizes Krasner’s view for

being excessively static and thus having the same explanatory power of ‘the

pioneering work of Carl Schmitt or … Hinsley’ (Biersteker 2002: 162).

Furthermore, in the seminal volume co-edited with Cynthia Weber, Biersteker

(1996: 1-2) presents sovereignty as an inherently social concept: ‘States’ claims to

sovereignty construct a social environment in which they can interact as an

international society of states, while at the same time the mutual recognition of

claims to sovereignty is an important element in the construction of states

themselves’.

Moreover, Biersteker and Weber argue that each component of

sovereignty (e.g. territory, population, recognition, and authority) is socially

constructed and linked by a normative concept. ‘The modern state system is not

based on some timeless principle of sovereignty, but on the production of a

normative conception that links authority, territory, population (society, nation),

and recognition in a unique way and in a particular place (the state)’. The result is

that ‘the idea of state sovereignty is a product of the action of powerful agents and

the resistance to those actions by those located at the margins of power’. The

36

peculiarity of Biersteker and Weber’s work is that it has its focal point in the

social construction of sovereignty as well as ‘by what practices and on whose

behalf it is constructed’. As they openly admit, they have intentionally placed ‘an

empirical consideration of the social construction of sovereignty at the center of

[their] analysis’ (Biersteker and Weber 1996: 3, 8, 4).

How does Krasner react to such an articulated critique? Firstly, he firmly

distances himself from any of the constructivist suggestions and stresses that his

presentation of sovereignty as an organized hypocrisy has its central focus on

power and material interests, which he presents as the only valuable means by

which to understand ‘the contested character of Westphalian sovereignty’

(Krasner 1999b: 45). In line with such a statement, Krasner’s more meticulous

defense against constructivist claims stems from his idea that concepts like

sovereignty emerge from the political reality and become consolidated legal

expressions only when they are manipulated by dominant actors. In his in-depth

analysis of the Peace of Westphalia, he challenges two main assertions that, prior

to his research, scholars had normally taken for granted: firstly, he rejects the

view that Westphalia is ‘a clear break with the past’ (Krasner 1993: 235);

secondly, he criticizes the hypothesis that mere ideational developments

constituted the driving forces that paved the way for the collapse of universal

institutions such as the Holy Roman Empire and the Papacy.

In addition to these two points, Krasner stresses that sovereignty remains

one of the most contested ideas; both de facto and theoretically. However, he

argues that developments in sovereignty mainly stem from the availability of

material resources. Further expanding on this last observation, he specifies that:

the interests of leading figures are central; nevertheless, it is material assets that

37

determine who the leading figures are and thus, indirectly, what type of interests

are going to prevail; having proposed such a scenario, Krasner ends up stating that

thinkers have done nothing but offer ‘a variegated menu of intellectual ideas from

which [rulers] could draw to justify their policies’ (Krasner 1993: 263).

An alternative way of addressing the evolution of the international society

and of its ordering principle of sovereignty has been proposed by Daniel Philpott

(2001). Advocating the driving power of ideas in shaping the ‘constitution’ of

international society, Philpott has identified the Peace of Westphalia and the

process of decolonization started in the 1960s as the two defining revolutions that

have shaped the international order in the last four centuries (Philpott 2001: 11-

15). While Westphalia produced a set of norms, rules, and practices that became

the basis of a new society, decolonization eventually facilitated the extension of

such a system to the whole planet.

In contrast with Krasner, Philpott has put central emphasis on the

assumption that ideas can be so powerful that, sooner or later, they end up

generating new authority. Expanding on this opinion, Philpott has suggested that

looking at the international environment one can distinguish three relevant ‘faces’

of authority. Each face addresses a precise question: first, what are the legitimate

polities composing the international society? Second, what rules are disciplining

membership in such a society? Third, what basic prerogatives are characterizing

the members of the international community? Having presented these three

relevant nuances of authority, Philpott has argued that a revolution in the

constitution of international relations takes place only when the pillars of at least

one of the faces of authority are substantially altered. Perfectly inscribed in a

constructivist analytical framework, he has claimed that there can be moments in

38

history in which new ideas and beliefs are so powerful that they might generate

reaction chains culminating in structural readjustments of the international

society: ‘ideas convert hearers; these converts amass their ranks; they then

demand new international orders; they protest and lobby and rebel to bring about

these orders; there emerges a social dissonance between the iconoclasm and the

existing order; a new order results’ (Philpott 2001: 4).

3. From the humanitarian intervention debate to the

Responsibility to Protect

The history of the last century can reveal different types of interpretations if

examined from the prospective of international law, security studies, or theories

of international relations. Further insights can be gained by merging these

approaches. For example, applying a multidisciplinary approach to the historical

evolutions and the reciprocal conditioning of the forms of war and the forms of

international cohabitation, Alessandro Colombo (2006) has presented the informal

Westphalian system and the treaty-based collective security architecture launched

at the 1945 San Francisco conference as being in conflict with each other. An

account of the diplomatic negotiations that led to the creation of the UN system is

far beyond the scope of this literature review. What matters, however, is to briefly

reconstruct the rationale behind the original configuration of the UN system.

The idea that people do not have a locus standi in international law

remained practically unchallenged until the end of World War I. Prior to the

spreading of ‘the Wilsonian spirit’ through Europe, the community that resided

39

with a territory tended to be seen as a sort of ‘pertinence’ of the sovereign

authority, thus excluding the legitimacy of any type of external interference:

quisquis in territorio meo est, meus subditus est / everyone who is in my territory,

is my subject (Conforti 2002: 199). In 1945, the tragedy of two World Wars and

the negative experience of the League of Nations provided a clear incentive for

the establishment of a system that would update the normative basis of the

Westphalian world and favor the promotion of international peace and security

through institutionalized multilateral cooperation and the promotion of the

centrality of the human person. Unfortunately, the full realization of this

alternative model was hampered by the emergence of a bipolar system and

negatively affected by the failure to implement those military aspects of the new

construction that might have enabled the international community to overcome

Westphalia in a substantial way. For example, the establishment of an

international military force placed permanently at the disposal of the UNSC,

ready to intervene to protect the population in crisis areas, as well as the creation

of a unified military committee, which was set out in articles 43 and 45 of the UN

Charter, but have never been implemented (UN 1945). As a consequence, and

similarly to the League of Nations, the UN system was established as another

multilateral experiment that was not properly equipped to fully replace the pillars,

practices, and dynamics typical of the Westphalian order.

With the end of the Cold War, new political conditions paved the way for

the progressive elimination of the points of friction between the surviving pillars

of the Westphalian system and those of the collective security structure that could

not, so to speak, ‘take off’ due to the structural limitations of the UN and the

political dynamics of the bipolar international environment. The dramatic crises

40

that erupted in every continent in the early 1990s gave impetus to the debate on

humanitarian intervention10 and, consequently, led to a questioning of the concept

of domaine réservé. Holzgrefe and Kehoane (2003: 18) define humanitarian

intervention as ‘the threat or the use of force by a state (or group of states) aimed

at preventing or ending widespread and grave violations of the fundamental

human rights of individuals other than its own citizens, without the permission of

the state within whose territory force is applied’.

In retrospect, one of the first concrete proposals that have induced to

rethink the concept of sovereignty in the context of the need for humanitarian

intervention dates back to October 1991 and was specifically limited to the pan-

European context. The UN founding act states that, at least on a theoretical level,

states are all equal because they are all sovereign entities. Art. 2.1 of the UN

Charter clearly states that ‘the Organization is based on the principle of the

sovereign equality of all its Members’ (UN 1945). The emphasis on equality was

linked to the belief that nothing could dismantle the inviolability of the domestic

jurisdiction. At the third Conference on the Human Dimension of the CSCE, held

in Moscow, 38 delegations from the pan-European region (including the United

States and the USSR, which was experiencing the last stages of the agony that led

to its dissolution) agreed on a document that represented the first serious

challenge to the concept of the domestic jurisdiction. CSCE members agreed that

the inviolability of the internal affairs of the state was no longer a legitimate

argument for matters falling within the realms of human rights, fundamental

freedoms, democracy, and the rule of law. This idea was clearly explained in the

Moscow document:

41

issues relating to human rights, fundamental freedoms, democracy and

the rule of law are of international concern, as respect for these rights

and freedoms constitutes one of the foundations of the international

order … [T]he commitments undertaken in the field of the human

dimension of the CSCE are matters of direct and legitimate concern to

all participating States and do not belong exclusively to the internal

affairs of the State concerned. They express their determination to

fulfill all of their human dimension commitments and to resolve by

peaceful means any related issue, individually and collectively, on the

basis of mutual respect and co-operation. In this context they

recognize that the active involvement of persons, groups,

organizations and institutions is essential to ensure continuing

progress in this direction (CSCE 1991: 2, emphasis added).

This formulation was radically innovative and of great significance, in

spite of the soft law character of all CSCE/OSCE documents. However, it is the

emergence of the idea of sovereignty as an internationally shared responsibility

that can be identified as a potential watershed. Indeed, this normative innovation

represents a powerful tool for practitioners. Grounded in an understanding of

sovereignty as a capacity, this vision has offered a chance to move beyond the

status quo that had been the accepted thinking for decades in international

politics. According to this new formulation, the exercise of national sovereignty is

recognized as a privilege that governments are entrusted with, but that is

dependent on the fulfillment of a set of responsibilities. This understanding of

sovereignty simultaneously emphasizes the international and the domestic

accountability of national governments. In the eyes of Amitai Etzioni – a scholar

who supports a neo-communitarian understanding of international relations – with

this re-characterization of sovereignty, nations could become less and less ‘free

42

agents, [as] they will increasingly be treated as members of one community’

(Etzioni 2006: 83).

The discourse on sovereignty as responsibility was introduced by Francis

M. Deng (et al. 1996), who focused on the various issues related to conflict

management and peacekeeping initiatives undertaken under the auspices of the

international community in several African states. In Deng’s eyes

The locus of responsibility for promoting citizens’ welfare and liberty,

for organizing cooperation and managing conflict, when not exercised

by the society itself, remains within the state. Until a replacement is

found, the notion of sovereignty must be put to work and reaffirmed to

meet challenges of the times in accordance with accepted standards of

human dignity (Deng 1996: xi).

Six years later, the International Commission on Intervention and State

Sovereignty (ICISS) – an initiative promoted by the Canadian government that

gathered both scholars and practitioners from all over the world – expanded on

Deng’s farsighted theories. In its final report, building on the idea of responsible

sovereignty, the ICISS argued for the promotion of a concept with clear

operational implications, the responsibility to protect (R2P), which in the analysis

of the ICISS should be accompanied by two corollaries: a commitment to prevent

and a responsibility to rebuild.11 Developing Deng’s ideas, the ICISS argued the

following:

Thinking of sovereignty as responsibility, in a way that is being

increasingly recognized in state practice, has threefold significance.

First, it implies that the state authorities are responsible for the

functions of protecting the safety and lives of citizens and promotion

43

of their welfare. Secondly, it suggests that the national political

authorities are responsible to the citizens internally and to the

international community through the UN. And thirdly, it means that

the agents of state are responsible for their actions; that is to say, they

are accountable for their acts of commission and omission. The case

for thinking of sovereignty in these terms is strengthened by the ever-

increasing impact of international human rights norms, and the

increasing impact in international discourse of the concept of human

security (ICISS 2001: 13).

3.1. From the responsibility to protect towards a duty to prevent,

already?

How did scholars react to these normative developments? Offering classifications

or generalizations is often a pointless exercise. Nevertheless, one can say that in

parallel with the conceptual evolution of the principle of sovereignty as

responsibility two visions of international relations have emerged: a libertarian

and neoconservative view on the one hand, and a communitarian and idealistic

view on the other hand. Advocates of the former approach to international

relations (Feinstein and Slaughter 2004) have emphasized that, other than the

responsibility to protect, intending sovereignty as a capacity would also ideally

imply a duty to prevent, which would justify initiatives by single states or groups

of states seeking to prevent possible sources of insecurity from threatening the

international environment (this idea will be examined more extensively in the

following section). Conversely, supporters of the latter idea have argued in favor

of strong external involvement in failing or collapsed states only in cases where

serious humanitarian emergences occur. Arguing in favor of this neo-

44

communitarian view, but also taking the concept further, Amitai Etzioni (2006:

82) has stressed that ‘when a state acts irresponsibly, some international body will

rule that the state has defaulted on its responsibilities and thus call for corrective

international intervention by an international or regional body’.12

Seeking to identify what responses to security threats should more

appropriately form part of a global strategy that ‘maximizes the chances of early

and effective collective actions’, Feinstein and Slaughter (2004: 136) have tried to

answer this question in the pages of International Affairs. Their proposal,

however, ends up going a bit too far and turn the general commitment to prevent

from responsibility to a duty. The two analysts have argued that the characteristics

of the idea of sovereignty as an internationally shared responsibility allows early

and preventive action against regimes that collect or trade technologies for the

development of WMD. Feinstein and Slaughter (2004: 136) suggest that today,

for the sake of international security and stability, it is necessary to recognize ‘a

collective duty to prevent nations run by rulers without internal checks on their

power from acquiring or using WMD’. Developing further this hypothesis in the

hope that it would allow and motivate states to become ‘proactive’ rather than

reactive, Feinstein and Slaughter (2004: 137) identify three elements:

First, [the duty to prevent] seeks to control not only the proliferation

of WMD but also people who possess them. Second, it emphasizes

prevention, calling on the international community to act early in

order to be effective and develop a menu of potential measures aimed

at particular governments – especially measures that can be taken well

short of any use of force. Third, the duty to prevent should be

exercised collectively, through a global or a regional organization.

45

Arguing against the inadequacy of the current regimes against the

proliferation of nuclear, chemical and biological weapons, Feinstein and

Slaughter emphasize that the duty to prevent makes the case for greater

multilateral control over governments that both lack a credible system of internal

checks and that try to acquire WMD. The two scholars are in favor of the pre-

emptive use of force, but while they state that this should be legitimately

authorized by the UNSC, they nevertheless criticize its dangerous tendency

towards paralysis and they propose, as a second best option, the initiatives of

‘geographically competent’ regional organizations.

This proposal however reveals a series of weaknesses. Firstly, will it

always be easy to identify and activate the geographically responsible

organization? Secondly, according to article 53 of the UN Charter, if an initiative

of a regional organization implies the use of force, the UNSC still remains the

only institution that can legitimately authorize such types of action. The UNSC

authorization would be unnecessary only if the old definition of ‘enemy state’

provided in the UN Charter – against which a regional organization could

legitimately employ force without any authorization – was updated. For instance,

a reform of the UN founding treaty could specify that enemies are no longer the

countries defeated in World War II (who have been ‘rehabilitated’ by joining the

UN) but those regimes that are based on a system of terror and, as Feinstein and

Slaughter (2004: 143) argue, whose leaders have ‘terrified, brainwashed, and

isolated their populations and have either destroyed internal opposition or

subdued it by closing their societies, restricting information as much as possible’.

If a reform of the Charter in this direction is inconceivable, the risks that

derive from it are equally clear. Amongst others skeptics, Gareth Evans has

46

openly criticized the idea of a duty to prevent since it focuses excessively focus on

a ‘label’ that can be attached to regimes rather than on the actual behavior of

governments in relation to their inclination to develop WMD, provide support to

terrorist groups, or tolerate transnational organized criminal networks. The former

Co-chair of the ICISS has stated that, in principle, ‘the rule of law is always at

risk when the focus is on what people are rather than what they do’ (Evans 2004).

3.2. The sovereignty as responsibility ideal: consolidated ethics for

contemporary statebuilding or mirage?

The debate between neo-communitarians and neoliberists has been characterized

by an interesting confrontation. However, it started to drift attention away from

the most crucial issues of intervention today: first, what are the operational

implications of the sovereignty as responsibility ideal? Second, is this concept

positively influencing international policy making?

Stephen Krasner (2004) has provided an interesting reflection on the first

issue raised above, since he has seen the debate on sovereignty as responsibility as

a chance to openly argue against the inadequacy of transitional administrations

and programs of governance assistance. These represent the two policy

instruments mostly utilized by regional organizations and coalitions-of-the-

willing that are mandated to act in crisis areas under the legitimizing umbrella

provided by UNSC resolutions. Krasner avails of the wide consensus surrounding

the idea of sovereignty as responsibility to expand the toolbox of policy

instruments for international action in failed or failing states by proposing the

formalization of two mechanisms: de facto trusteeships and partnerships. In

47

particular, formal partnerships imply the reorganization of core domestic

authorities of weak or failed states on the basis of ‘shared sovereignty’ formulas

(Krasner 2004: 105-117).

When it comes to the second question above, it should be noted that there

have been attempts to show that the idea of sovereignty as responsibility has

actually become a driving principle for practitioners, especially for those who are

involved in the work of international peacekeeping missions or take part in the

reconstruction of post-conflict societies, failing and failed states (Etzioni 2004).

Reconstructing the normative vision of state sovereignty and post-war stability

lying behind the activities of UN missions deployed in crisis areas, Dominik

Zaum (2003; 2007) has argued in favor of the actual consolidation of this new

understanding of sovereignty in international relations.

At the same time, criticism against the reinterpretation of sovereignty as a

shared responsibility has started to emerge. For instance, commentators have

warned that ‘subordinating the supremacy of state sovereignty to the higher

authority of the international community undermines the project of making power

more accountable, and restrains the exercise of political agency in international

politics’ (Cunliffe 2007: 40). A more articulated critique, equally focused on the

problem of accountability, has been proposed by David Chandler (2006),

according to whom the centrality of statebuilding in the current international

political debate perfectly serves the rationale of an Empire in Denial.

The main purpose of the analysis developed in this thesis is to make a step

back from the problem of accountability and question the genuine diffusion

among international policy-makers of the sovereignty as responsibility ideal.

Focused on the case of the EU, the pages that follow specifically examine the

48

ability of a complex multilateral organization to genuinely take responsibility for

its action in crisis areas. The decision to focus on the EU is a conscious choice in

order to fill a series of gaps in both the scholarly literature and policy analysis.

The reconstruction of the normative principles informing the strategic

member-statebuilding undertaken by the EU in its neighborhood has been thus far

quite overlooked. The recent literature on sovereignty and statebuilding has

mostly focused on the UN, and it has concerned the identification of the

ineluctable paradox stemming from statebuilding practice: international missions

compromise domestic sovereign prerogatives to foster the institutional

reorganization of a collapsing or collapsed state, democratize it, and re-establish

stable and well-functioning authorities that will properly exercise sovereignty

again.

According to the definition proposed by Krasner (1999b: 20), Westphalian

sovereignty is not violated while domestic rulers are ‘free to choose the

institutions and policies regarded as optimal, [whereas] Westphalian sovereignty

is violated when external actors influence or determine domestic authority

structures’. However, violations of sovereignty differ from one another, since they

can be based on invitation or intervention. When the latter occurs, both

international legal and Westphalian sovereignty are simultaneously breached. But

when domestic rulers voluntarily renounce their domestic autonomy – as to a

certain extent happened in the history of the EU integration process – only

Westphalian sovereignty is breached.

Analyzing the normative vision of sovereignty at the basis of the EU

initiatives for the reorganization of its neighboring weak states encompasses a

further element of interest if compared with the analysis of UN-led initiatives of

49

the same kind, because it enables the exploration of a ‘paradox within the

paradox’ of sovereignty and external statebuilding. The case of BiH is pivotal in

this regard. Given its multinational character and the legacy of the civil war, BiH

offers a unique ground for analysis, which can be useful in understanding the

broader dynamic of the EU’s commitment to the stabilization and integration of

its near-abroad, where several units are still states in-the-making but have already

formally signed up to be part of the EU enlargement process. Moreover, the

experience of massive international intervention in this country offers a vast

analytical ground to test another theoretical assumption on intervention. Krasner

(2004: 87) has highlighted an incongruence between how statebuilding is

presented and how it is in actually implemented by the external actors once they

operate on the ground of a failing or failed state:

Nationbuilding or state-building efforts are almost always described in

terms of empowering local authorities to assume the responsibilities of

conventional sovereignty. The role of external actors is understood to

be limited with regard to time, if not scope, in the case of transitional

administration exercising full executive authority. Even as the rules of

conventional sovereignty are de facto violated if not de jure

challenged, and it is evident that in many cases effective autonomous

national government is far in the future, the language of diplomacy,

the media, and the street portrays nothing other than a world of fully

sovereign states.

50

4. Modeling sovereignty and institutions: what is critical in

contemporary statebuilding?

With a successful attempt to characterize nation- and statebuilding practices in

geopolitical terms, Mark Berger has offered a comprehensive definition, which

sheds light on both the strategic objective and the main instrument that are

generally employed by internationals in crisis areas. Statebuilding can be referred

to as:

Externally driven, or facilitated, attempt to form or consolidate a

stable, and sometimes democratic, government over an internationally

recognised national territory against the backdrop of the establishment

and consolidation of the UN and the universalisation of a system of

sovereign nation-states. Nation-building and statebuilding can

encompass formal military occupation, counterinsurgency,

peacekeeping, national reconstruction, foreign aid and the use of

stabilisation forces under the auspices of the USA, Britain, France,

NATO, the UN or another international or regional organisation

(Berger 2006: 6).

This definition can be complemented with the characterization offered by

Roland Paris and Timothy Sisk (2009: 1-2), who have labeled statebuilding as ‘a

particular approach to peacebuilding, premised on the recognition that achieving

security and development in societies emerging from civil war partly depends on

the existence of capable, autonomous and legitimate governmental institutions’.

From the pages of Politique Internationale, Richard Caplan and Beatrice Pouligny

(2005a: 124) have acknowledged that the development of a systematic practice

aimed at containing the failure of states through multilateral intervention has been

a clear watershed in contemporary international politics, since it implied for the

51

international community to recognize that ‘la guerre (ou la menace contre « la

paix et […] la sécurité internationale ») ne naît plus de la puissance des États mais

de leur faiblesse / war (or the threat against international peace and security) does

not stem from the power of states but from their frailty’. Adopting a similar

position, Francis Fukuyama (2004: xvii) has warned that ‘statebuilding is one of

the most important issues for the world community because weak or failed states

are the source of many of the world’s most serious problems’.

Actually, the practice of securing troubled territories under international

tutelage is not a novelty of the last two decades. This tendency can be traced back

to the mandates issued by the League of Nations right after the end of World War

I if not, to some extents, also to the aftermath of the Balkans Wars that preceded

the Great War in the earliest part of the last century. Examples of externally

regulated and re-organized states, however, can also be found by making a further

step back in history. For example, the various forms of protection that were

granted by the Ottoman Empire represent only one amongst many other examples

that could be brought.

Today’s statebuilding praxes, however, are different for both qualitative

and quantitative peculiarities if compared to past experiences of a similar kind. On

the one hand, there is a ‘legal’ difference. It should not be disregarded that peace-

and statebuilding projects worldwide are generally covered by the legal umbrella

agreed upon at the United Nations, the only global organization that is morally

and legally entitled to provide legitimacy to such initiatives. On the other hand,

the reconstruction and rehabilitation of sovereignty in weak polities is pursued by

structured and long term missions that are attributed an unprecedented degree of

resources, power, and authority, and that develop a degree of institutionalized

52

multilateral intrusiveness in the socio-political life of the target state that has no

equivalent in contemporary history.

Throughout the Cold War era, the UN undertook numerous field missions

for the stabilization of states that either were going through the decolonization

process or were coming out from both regional and endemic conflicts. In 1992

two remarkable decisions of the UNSC opened the way for the intensification of

the debate on humanitarian intervention. Firstly, the eruption of the crisis in

Somalia induced the UNSC to authorize the use of force within the border of a

state. In a clear break with the past, such a breach of the domestic jurisdiction was

not justified by producing evidence on the possible regional impact of the crisis.

With such a shift, the rigid application of the limit disposed by article 2.7 of the

UN Charter were overcome and slowly turned into history by the UNSC.

Secondly, in the same year, a UN Mission was sent to Cambodia (APRONUC)

inaugurating, even if with dubious results, the season of post-Cold War

statebuilding initiatives.

Post-conflict statebuilding missions are complex and articulated projects.

The externally-driven construction of democratic institutions and the injection of

good governance practices require substantial human and financial resource from

like-minded states and multilateral organizations, as well as a long term

commitment. In the previous sections of this chapter, it has been argued that the

concept of sovereignty is central to the debate on the justification of statebuilding

initiatives as well as, more in general, peacebuilding projects. Moving from the

ground of normative principles to more operational aspects of intervention, the

following sections address three concrete dilemmas that are connected to the

reconstruction of failed or failing states. These dilemmas will be applied to the

53

specific Bosnian context in Chapter III. The empirical analysis that will follow in

Chapters IV and V focuses on the performances of the EU in the stabilization of

BiH with a view to understand how (in this case EU) policy-makers who

contribute to a complex multilateral statebuilding project think when they debate

and design their policies, but also how they end up operating in the field.

At a first glance, the initial statebuilding dilemma that is going to be

discussed here seems to resemble a mere diplomatic concern rather than a

concrete issue. On the contrary, it probably represents a fundamental issue that the

international community faces in the aftermath of civil wars: is it desirable to

reassemble states that have collapsed along marked ethnic and/or religious

fractures and have experienced dramatic domestic violence? This question

becomes more difficult if civil war has actually resulted into a high number of

internally displaced people, flows of refuges beyond the national boundaries, and

cases of mass murders or genocide.

Beyond the reflections on what can be referred to as the preliminary

dilemma of statebuilding in post civil-war environments, attention will be then

switched to the concrete operational and strategic problems that characterize

statebuilding practices on the field. Looking at the projects for the external

reconstruction of states that have been undertaken in the last decades it is possible

to sum up two main operational dilemmas, which are distinct but entrenched

around the demand for effectiveness. To be precise, these two dilemmas intersect

around the contraposition between nation-building and technical institution-

building.

On the one hand, practitioners face the strategic question: should

statebuilding initiatives privilege a bottom-up or a top-down approach? This

54

question can be metaphorically identified as the ‘vertical’ dilemma of

statebuilding, since it addresses the strategic direction towards which policies are

tuned. On the other hand, since resources and time are limited, practitioners have

to identify systematically the character of their initiatives. In other words, a

‘horizontal’ dilemma of intervention can be synthesized with the following

question: is a technical approach to statebuilding preferable to the ambition of

promoting wider socio-political projects and grass-roots reconciliation policies in

the reorganization of a fractured polity? If the vertical dilemma focuses on the

choice of the primary target of international policy-making in statebuilding

initiatives, the horizontal dilemma refers instead to the definition of the means for

intervention. From a policy perspective, to provide an answer for these questions

is of crucial importance. As Ashraf Ghani and Clare Lockhart (2008: 4) have

warned, ‘the failed state ... is at the heart of a worldwide systemic crisis that

constitutes the most serious challenge to global stability in the new millennium’.

4.1. The statebuilding dilemma I: together again? Reflections on

the post-civil war reconstruction of collapsed multi-ethnic

states

International intervention in civil wars opens up a series of issues, which range

from the reestablishment of security to the containment of the humanitarian

emergences produced by the conflict. But once the necessary resources to contain

such challenges have been successfully employed on the ground, the international

community faces the initial, crucial dilemma of statebuilding: is it possible (and

desirable) to recompose all the fracture lines that have led to a civil war and

55

rebuild a unitary state? In his analysis on State Failure and Nation-Building,

Michael Ignatieff (2003: 309) has pointed out that, from a global perspective,

multiplying the number of states that follow the rigid Westphalian model may not

necessarily ‘reduce chaos and … improve domestic governance and stability’. On

this basis, Ignatieff ends up questioning the opportunity of gluing together again

(in the name of a supposed ‘Westphalian ideal’) parts of states that have collapsed

for the presence of serious ethnic fractures within their borders.

Against this backdrop, one further question can be identified: on what

basis can we consider the reconstruction of a unitary multiethnic state as an

appropriate choice? Useful reflections on this issue have been provided by Robert

Keohane (2003). In his analysis on humanitarian intervention and post-conflict

statebuilding, he proposes to highlight the key distinction between good and bad

neighborhoods. It is on the basis of such strategic distinction that decisions shall

be adopted by international institutions, at least on the very initial phases of the

post-war reconstruction. Institutional development, evidently, results smoother in

good rather than in bad neighborhoods (Keohane 2003: 292-297).

If this vision is accepted, it is possible to say, for example, that the

installation of the EU prospect of membership on the Western Balkans and the

approximation process between Brussels and the capitals of the region has served

the purpose of projecting former Yugoslavia into a broader network. This network

guarantees to former Yugoslavia the possibility to benefit of a better

neighborhood. More precisely, integration with Western Europe represents a

chance to dilute critical intra-regional tensions – within states and between states

of the region – into a greater area of institutionalized cooperation. The European

construction is based on the respect of sophisticated procedures and norms, the

56

primauté of the European Community laws over national legislations, as well as

on multilevel interaction networks that are bound to respect the key principle of

subsidiarity. As long as the Western Balkans remains an unstable region at the

periphery of Europe, consolidating a credible stabilizing geopolitical perspective

thus remains a crucial challenge for the EU.

To conclude the reconstruction of the first ‘preliminary’ statebuilding

dilemma, a final methodological remark can be proposed, by making another

reference to the work of Keohane. Analyzing the unbundling of sovereignty that

derives from foreign intervention in troubled states, he has pointed out that the

restoration of unitary sovereignty produces highly dangerous risks in the

aftermath of a civil war, especially if the conflict was generated from ethnic or

religious clashes. Providing indirectly an argument for the formalization of shared

sovereignty arrangements – which, as previously mentioned, have been more

openly supported by Stephen Krasner (2004) – Keohane (2003: 287) carefully

stresses that ‘it is foolhardy to grant unconditional, unitary sovereignty to new

states with severe ethnic divisions’.

4.2. The statebuilding dilemma II: bottom-up vs. top-down

approach

If the first dilemma of statebuilding emerges prior to intervention, the remaining

two dilemmas characterize the choices of international statebuilding missions as

soon as security on the ground improves and the peacebuilding process enters its

implementation phase. In one of his most recent works, Francis Fukuyama (2004:

xvii) has pointed out that ‘while we know a lot about statebuilding, there is a great

57

deal we don’t know, particularly about how to transfer strong institutions to

developing countries’; indeed, according to the American scholar, ‘well-

functioning public institutions require certain habits of mind and operate in

complex ways that resist being moved’. As the picture presented by Fukuyama

suggests, both academics and policy analysts shall renew attention to the

operational dimension of the discourse on statebuilding, possibly, with two main

objectives in mind. On the one hand, it is crucial to assess the procedures and

practices through which new institutions in failing or failed states are established

and actually put to work (which constitute the technical dimension of

statebuilding). On the other hand, it is also necessary to examine the modalities in

which internationals interact with both the elites and constituent people of the

target state. The empirical chapters of this thesis aim to elaborate exactly on both

these aspects and fill the current analytical gap by assessing the quality of

statebuilding policies beyond the debate on, so to speak, the ‘quantity’ of

intervention.

The sometimes ‘random’ division of labor between the different external

actors (often with overlapping competences) that compose the international

presence in a post-conflict scenario generates an unbalanced approach to the

overall stabilization process. As the recent two-decade history of post-conflict

reconstruction demonstrates, international policy-making tends to marginalize the

tensions characterizing the bottom of the state, and the micro-conflicts

underpinning it, to focus mostly on the very political surface. The two dimensions

are indeed dealt with in absence of a coherent planning and with the tendency to

poor resources mostly into technical initiatives rather than bottom-up policies that

help stabilizing the civil society and promote its maturation. Actually, it has

58

become regularity in peacebuilding processes to leave the social dimension of

state consolidation mostly to the voluntary and sporadic care of NGOs.

In other words, there is an operational dilemma between top-down

institution building initiatives and bottom-up maneuvers (that promote a culture of

democracy, long-term reconciliation, incentives for participation, and revitalize

the civil society). The experience of the statebuilding processes undertaken over

the last twenty year – from BiH to Iraq – demonstrates that international missions

tend to employ resources predominantly to create institution and inject good

governance practices. With a very strong but effective expression, Christopher

Bickerton (2005b: 11, 10) has emphasized that, in consideration of this

operational tendency, contemporary statebuilding results into an unbalanced

process, where the international agent ends up ‘stripping states of their soul’ that

is, in other words, ‘all the intangible and immeasurable concepts such as political

authority, legitimacy, agency and collective will – in a word, sovereignty’.

Capacity building and technical assistance programs focused on political

and bureaucratic elites can be powerful tools to accelerate the reorganization of a

public administration and, more in general, they represent a way to equip

domestic authorities with better managerial attitudes. However, when the focus on

such polices produces a dangerous marginalization of the socio-political

dimension of intervention, is not sustainable in a long term run. Often, the result

is indeed that the political environment is overdosed by repeated elections – that

often are organized also in the very aftermath of conflict – while profound

fractures continue to undermine the stabilization process under the surface.

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4.3. The statebuilding dilemma III: technical international

presence vs. complex post-war stabilization

Fukuyama’s concise definition of statebuilding as ‘the creation of new

government institutions and the strengthening of existing ones’ (2004: ix), seems

to be excessively technocratic. This critique actually finds a further confirmation,

if we consider the way in which Fukuyama assesses the weaknesses of

contemporary statebuilding practices. Apparently overlooking the sociological

aspects and the complexities related to the formation and stabilization of the state,

Fukuyama seems concerned mostly with the fact that a successful field

implementation of externally-driven statebuilding initiatives can be seriously

hindered by organizational ambiguities and scarce policy planning. Indeed, goals

agreed upon at international level are frequently ‘unclear, contradictory, or

otherwise poorly specified’ (Fukuyama 2004: 69).

Other than for lacking clarity of objectives and coordination, statebuilding

initiatives have also been criticized for being too broad and excessively intrusive.

For instance, Marina Ottaway (2002: 1008-09) has emphasized that ‘[i]n an

attempt to remedy early mistakes and avoid future failures, the international

community has developed a set of prescriptions for state reconstruction that is so

exhaustive that it cannot be possibly followed in practice’. What international

officials might call ‘creative ambiguity’ is instead (too often) scarce awareness of

the social context in which intervention takes place and poor understanding of the

processes that, historically, are at the basis of the social and political structures of

the recipient state. In this regard, Caplan and Pouligny find statebuilding missions

guilty for their scarce consideration to ‘the complex processes of interaction

between the state and the society that allow the constructions of nations’ (2005b:

60

121, my translation). Lacking such a focus, contemporary statebuilding practices

may end up in undermining rather than strengthening the governance capacities in

failed or failing states.

The negative influence of multilateral missions in crisis areas does not

merely stem from the strategic focus that is given to internationally-led

institutional reconstruction. The installation of a long-term international presence

holds in nuce also some structural elements that create distortions in the post-

conflict environment. Among others, distortions are determined on the local

labour market. For instance, the former director of the OSCE Management and

Finance section Michael von der Schulenburg has critically emphasized how the

presence of international missions that hire local people inevitably creates

distortion on the already weak labour market of the recipient state: ‘[c]ompared to

local scales, international organisations and agencies pay highly inflated local

salaries. This creates a local labor market in which a new government has no

chance to compete’ (von der Schulenburg 2005: 22). Loosing such competition

forces local administrations to face a sort of internal brain-drain: the most skilled

locals tend to offer their expertise to international agencies, this ‘unintentionally

contribute[s] to marginalising the role of local administrations’ (Chalmers 2005:

22). On this specific regard, with a very strong expression, Michael Ignatieff (as

quoted in Fukuyama 2004: 139) has claimed that the international community’s

capacity-building initiatives have often turned out being ‘capacity sucking-out’

actions.

The account above seems to confirm that also scholars, in line with the

work of practitioners, have approached statebuilding polices mostly by focusing

on technical issues rather than encompassing societal considerations in their

61

concern. This is only partially true. Even Fukuyama (2004: xvii, 40) has

recognized that both the efficiency and the stability of public institutions have a

lot to do with ‘certain habits of mind’ and that ‘the development of formal

institutions is strongly affected by cultural factors’. Compensating his largely

technical approach to statebuilding, the American scholar has suggested that

stateness should be examined by distinguishing ‘four nested aspects’:

organizational design and management, political system design, basis of

legitimization, and cultural and structural factors (Fukuyama 2004: 31-41). While

acknowledging that the first component (institutional capacity stricto sensu) is the

one that can be more easily exported and resists the influence of societal and

cultural tensions, the fourth component of stateness introduces a sociological and

anthropological dimension of statebuilding, which Fukuyama (2004: 43) further

expands by analyzing the issue of generating a genuine demand for institutions –

a challenge that state-builders cannot easily overcome and that they largely

underestimate.

Another series of key questions on contemporary international policy-

making practices has been brought by David Chandler (2004b; 2005c; 2005b;

2006), who has emphasized that one of the most crucial concerns for the officials

involved in contemporary statebuilding is how to avoid accountability. In this

regard, Chandler criticizes the proposals of the ICISS and the normative debate on

the sovereignty as responsibility ideal for providing merely a fertile ground of

useful justification to what has emerged as a complex framework for ‘the

regulation of and the intervention in non-Western states’ (Chandler 2005b: 2).

Statebuilding is the operational core of such a framework, which might

paradoxically weaken states by undermining the crucial relations of power and

62

accountability. The most evident result of states created ‘as administrative centres,

directed from Brussels or Washington’ is that the crucial connection that should

sustain the life of the state (the one between the state as organization and the state

has a societal community) does not have chances to develop; ‘this is particularly

problematic in situations where states have a weak social basis or their societies

are particularly divided or fragmented’ (Chandler 2005b: 6).

Caplan and Pouligny (2005a: 133) have brought two main critiques

against what they call ‘l’ingénerie du state building à la mode onusienne’ or UN-

driven statebuilding. On the one hand, they have highlighted that there could be

several long-term problem of institutional stability because statebuilding is too

often undertaken by simply transplanting into a society the practices, the

institutions and the laws that have developed in this or that Western state. On the

other hand, they criticize the tendency of multilateral statebuilding missions to

focus most exclusively on institutional and legal aspect of reconstruction.

Transferring practices and rearranging the institutions of a failing or failed state

turns out to be ineffective when it absorbs the resources of the international

institutions involved in the statebuilding project up to the point that the ‘societal

component’ is completely marginalized. Focusing on institutions- rather than

nation-building cannot be a successful grand strategy: the long term stability of

national institutions will only be granted if they serve a community that is

reconciled and wants to continue living together. Referring, among others, to the

work of Benedict Anderson (1991), Caplan and Pouligny (2005a: 134) have

emphasized that the vital lymph of a community should originate from

‘l’adhésion général et toujours renouvelée des citoyens au projet du vivre

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ensemble / the general, constantly renewed adhesion of the citizens to the project

of living together’.

5. Conclusions

Sovereignty, it has been claimed, ‘sprang out from universal morality’

(Pemberton 2008: 64-65). As the first part of this chapter shows, the key rule of

the game in international relations is also one of the most debated ideas in the

history of political thought. When theoretical confrontation on this concept

started, the main concern for classical thinkers was to identify the principles that

could allow stabilizing this normative imperative as a sort of ‘shield’ for the

domestic consolidation of authority. Later in history, in parallel with the

emergence of individuals as actors who have relevance and rights in the

international realm (also beyond the shell of their nation-state authorities), the

normative efforts of political theorists have been oriented towards the valorization

of the democratic character of sovereignty. Throughout the last decade,

elaborations on sovereignty have made another step forward, since the main

concern for both scholars and policy analysts has been to emphasize the

connection between legitimate sovereignty on the one hand and good-governance

capabilities of rulers on the other.

This last normative ferment has now reached an interesting crossroads.

There is a widespread consensus that the interpretation of sovereignty as an

internationally responsibility represents a new powerful normative basis on which

a substantial renovation of international cooperation could be grounded. However,

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interest on the general promotion of responsible sovereignty should not distract

from the concrete operational limitations that still affect long-term missions in

post-conflict scenarios. As the case of BiH will show, international policy-makers

are still, so to speak, in a marriage of convenience with the re-conceptualization

of sovereignty as a capacity and a responsibility. On the one hand, this new

understanding of sovereignty has provided a comfortable basis to justify

intervention and the prolonged international intromission in states that the

international community labels are weak, failed or in the process of failing. On

the other hand, the moral ideal of sharing responsibilities is not yet fully respected

by the external actors operating in crisis areas. Statebuilding missions maintain a

tendency to ‘babe’ local elites, but they nevertheless privilege the ‘technicisation’

of the relationships with the representatives from the target state.

This attitude is quite interesting in the case of the member-statebuilding

undertaken by the EU in BiH. In spite of the sophisticated ideal underpinning this

particular exercise of reconstruction – which is to dilute the sovereignty struggle

of the post-civil war multiethnic state through progressive integration into a

complex post-nation state union – Brussels nevertheless tends to distance itself

from political processes and uses, paraphrasing from Krasner, the sovereignty

issue in a hypocritical way. In this regards, it will be clarified that EU policy-

makers have adopted a ‘hands-up statebuilding’ attitude. The sovereignty as

responsibility ideal has not become yet a principle that genuinely informs and is

concretely implemented, even by EU policy-makers. As the analysis of the

Bosnian case will demonstrate, ‘logics of consequences’ remain still predominant

amongst statebuilders.

65

The normative ground and the mix of interests that affects a multilateral

statebuilding missions are not the only focus of this dissertation. The second part

of this chapter has also reconstructed the main strategic problems that

statebuilding missions are generally bound to face in their policy planning. The

challenge for the international community is always greater when states collapse

due to profound ethno-religious fractures that affect the community within its

boundaries. In such specific cases, a first critical dilemma emerges even before

the statebuilding mission is launched. As soon as a cease fire is reached and

stabilized, and the negotiations for the peace settlement are structured, the

international community needs to assess the desirability of the reconstruction of a

multi-ethnic state. Once the pros and cons of this crucial initial decisions are

overcome and a choice in one direction or the other is taken, two operational

dilemmas of statebuilding emerge: the dilemma of bottom-up vs. top-down

statebuilding (which has metaphorically been referred to as the ‘vertical’

dilemma), and the conflict between technically oriented assistance and a complex

post-war stabilization focused, from the earlier stages of the statebuilding project,

on grass-root reconciliation and the establishment of a definitive socio-political

peace (which has been instead identified as the ‘horizontal’ dilemma of

statebuilding).

As the literature review in this chapter demonstrates, at the intersections

of these two sets of operational choices lies the subtle contraposition between

technical institution building and externally-incentivized nation-building. The

need to create a balance between these two trajectories represents the key to

success for statebuilding initiatives. When interest in the former is predominant,

human and financial resources from international agencies are mostly invested

66

for the creation of structures that can guarantee short-term achievements. On the

contrary, if the latter, but more arduous path is privileged, international

institutions would be expected to tune their efforts mostly to implement policies

that respect a long-term vision, while in the medium range they favor the

consolidation for a stable environment where domestic political forces can play

the games of democratic confrontation and overcome relative-gain logics of

cooperation.

The case of BiH will be analyzed to demonstrate that foreign intervention

has rarely overcome these dilemmas, even when it has been rationalized in view

of a highly ideological project like EU integration. It will be clarified that also

the EU has thus far failed in consolidating an operational balance between the

horizontal and the vertical dilemmas of statebuilding. In pursuing its peculiar

member-statebuilding, even the EU is not yet immune from the strategic

limitations that affect other multilateral settings in their strategic decision-

making. A clear orientation in favor of technical and partial achievement leads to

overlook, or better, marginalize the civil society component. Short term and

limited successes remain a privileged objective. Moreover, the need for success-

stories drives international agencies to privilege relationship with a selected

class of bureaucrats (mostly educated in Western countries) which allows

procrastinating confrontation with a turbulent political class and the fractured

and difficult-to-approach constituency. This, so to speak, ‘more comfortable’

way of interaction can be traced back to some very basic needs that condition the

international community when it sets a highly-intrusive field action.

The recent history of peacebuilding efforts confirms that once a crisis is

under control and reconstruction can be launched, the continued involvement by

67

the international community is normally fed by two elements: the occurrence of

small crises that can be easily contained and, equally important, periodic and

partial successes. The former allow a mission to be kept in place and be justified

in the eyes of the host country and its population; the latter allows the field effort

to be justified in the eyes of the domestic constituencies of the countries that

contribute to the mission by sending their soldiers, personnel, different types of

material resources, and direct funding.

68

(Chapter II)

The Bosnian Context

Bosnia is a wonderful country, fascinating,

with nothing ordinary in the habitat or people.

And just there are mineral riches under the earth in Bosnia,

so undoubtedly are Bosnians rich in hidden moral values,

more rarely found in their compatriots in other Yugoslav lands.

But, you see, there's one thing that the people of Bosnia,

at least people of your kind, must realize and never lose sight of.

Bosnia is a country of hatred and fear.

Ivo Andrić, A Letter from 1920

1. Introduction

This project assesses how the current EU-driven stabilization of BiH has led to a

‘paradox within the paradox’ of sovereignty and statebuilding. International

multilateral organizations embarking on statebuilding projects are bound to

produce a paradox of sovereignty since the outside-in promotion of good

domestic governance in failed and failing states inevitably imposes constraints on

sovereignty. When the highly-intrusive statebuilding project was initially

launched in BiH under the strategic guidance of the UN, the external actors

operating – to paraphrase a famous expression from the DPA13 – ‘in and around’

Sarajevo compromised the self-governance of the target state, albeit with a view

to restoring the full sovereign prerogatives of domestic political authorities. Prior

69

to the involvement of the EU, this rehabilitation process was designed to stabilize

the independent multi-ethnic institutions and to rationalize the complex

constitutional architecture established under the DPA. However, this has resulted

in a further paradox whereby Brussels overseas the Bosnian multiethnic

experiment and fosters the creation of a specific ‘EU-feasible’ state. In this

member-statebuilding exercise, the EU educates national elites to relinquish

certain sovereign prerogatives when the time comes to join the supranational

Union.

Despite of the European perspective, which in principle is supported by all

members of the domestic political environment regardless of ethnic root or

religious affiliation, BiH remains a complex reality, in which party leaders

continue to approach cross-ethnic cooperation with a logic of relative-gain.

Moreover, the history of the last fifteen years shows that the process of

‘ownership’ in BiH has passed from the international community to the EU

without the decisive involvement of the Bosnian people and without lifting the

protectorate cloak from the politico-institutional life of the country. To be sure,

establishing a modern form of protectorate carries its own risks. According to

Susan Woodward (1999; 2001), sacrificing self-governance to restore sovereignty

through a massive and articulated external presence can lead to highly unstable

situations, especially in ethnically divided states like BiH that have emerged from

civil war and still suffer from serious ethnic fractures. Looking at the repeated

crises that affected political life in Sarajevo only a few years ago, Woodward

(2001: 258) emphasized that

The only force in favour of Bosnia as a whole is the international

community. While that does not mean that there are no domestic

70

constituents of a sovereign Bosnia, the way in which this

international operation is taking place gives free rein to those who

are opposed. It appears to provide no sanctuary or platform for those

who are committed to Bosnia.

Against this backdrop, the analysis in this chapter identifies the main

problems that have so far undermined the emergence of a political class that is

disposed to operate for the common good beyond ethno-religious divisions and is

therefore, recalling Woodward’s expression, truly ‘committed to BiH’. The first

part of the chapter describes the three main factors that make BiH a complex and

unstable political system. These coincide with the residual discontents of the

DPA, the negative impact that the protracted technical intrusiveness of the HR has

had on the political arena, and the dangers of weak democratization. Weak

democratization refers to the tendency of the international community to promote

institutional and technical developments, while disregarding the bottom-up

dimension of democracy. In the second part of the chapter, the main processes and

outcomes determined by the Bosnian stabilization process are connected to the

three operational dilemmas of statebuilding previously highlighted. In the third

section, the concrete and potential effects of the specific EU-driven statebuilding

in BiH are examined. An analysis of the OHR-EUSR transition will highlight the

difficulties for Brussels in pursuing its member-statebuilding and definitively

establishing its leadership role in BiH.

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2. From international to EU-driven statebuilding: fifteen

years of international presence in BiH

Since the EU has become the leading international actor in the Bosnian

stabilization experiment there is evidence of a further ‘complication’ in the

paradox of sovereignty and statebuilding identified by academics. Under EU

direction, it seems that BiH could potentially skip a step in the restoration of its

sovereign prerogatives. Seduced by the prospect of EU membership, BiH is

moving towards integration into a greater supranational organization that will

absorb critical sovereign prerogatives in the name of peace and development, and

with the repeated promise of prosperity. Sovereignty is thus restored with

international assistance, but only in the expectation that it will be subsequently

relinquished by the local government to the European supranational sphere.

What kind of rehabilitation process is the EU overseeing in BiH? Carl

Schmitt (1922: 5) wrote that ‘sovereign is he who decides on the exception’.

Paraphrasing Schmitt’s well-known formulation, it can be argued that, through the

prospect of membership, the EU is creating an exceptional situation if compared

to the trajectory of sovereignty in post-conflict statebuilding projects as identified

by the sovereignty paradox literature. Statebuilding initiatives are complex and

articulated projects; however, since the EU has taken over responsibility for the

Bosnian reconstruction, a clear objective has emerged: BiH is to be constructed as

a state ready to join the EU and relinquish some of its key sovereign prerogatives

when the time comes. In the words of the Head of the Western Balkans Task

Force at the Policy Unit of the EU Council:

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The EU is ready to interact with a non-orthodox state structure. Even a

country like Dayton Bosnia, to a certain degree, with all its anomalies

with regards to sovereignty and institutional arrangements, can

interact with the EU14 ... Bosnia is a state apparatus that can be

understood and thus changed only in relation to the European

integration project. We cannot say, “Let’s do Bosnia and then we

integrate it”. We are making Bosnia because of and through

integration.15

In the eyes of former HR/EUSR Paddy Ashdown (2007a: 112): ‘[t]he

phase at Dayton was the stabilization phase and the phase of statebuilding is the

phase of Brussels’. Perhaps inevitably at this stage, the idea that a stable and

multiethnic BiH is in the making ‘because of and through’ the EU integration

process is a deep rooted conviction amongst all practitioners working at the

offices of both the EU Council and the Commission. In line with this perception,

building the Bosnian state means moulding the future institutions of BiH into a

supranational institutional expression that originally emerged from the main

aspiration (of prosperity) that the Bosnian people have: increasing integration

with Western European countries. In brief, the prospect of EU membership has

induced the constituent peoples of BiH to attach to a supranational context their

idea of developmental state – to employ a term widely used in the political and

economic literatures, which has also ‘been crucial to the discussion of state failure

and collapse’ (Milliken and Krause 2002: 762) since it encapsulates the idea that

states’ legitimization stems from their ability to promote security and, most

importantly, the welfare of their citizens. For this reason, there is not a single

political leader in the country, even amongst the most radical or nationalist, who

expresses skepticism regarding the EU integration process for BiH.

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Opinion polls conducted on the tenth anniversary of the DPA (Prism

Research 2005) show that EU integration is perceived by Bosnian citizens mainly

as a process that should secure wellbeing and economic opportunity. Expressing

their understanding of EU integration, Bosnian citizens described Brussels first

and foremost as ‘a way to create a better future for young people’. The next most

popular answers were that EU membership guarantees freedom to travel and seek

opportunities abroad, as well as general economic improvements on the domestic

front. Interestingly in a post civil war scenario, the idea that the EU guarantees

‘lasting peace’ to BiH was only the fourth most popular answer, which actually

was cited by less than 10% of the population. Interviewed on what meaning

should be attached to EU citizenship, again, Bosnians indicated primarily the right

to move permanently to any country in the Union (over 70%). Over 50% also

pointed to the specific right to work in other countries; and an average of 23%

mentioned access to healthcare and social welfare outside BiH. Political rights

were only acknowledged by a very limited number of interviewees (less than

10%) as a relevant implication of EU citizenship. Moreover, 61,8 % of Bosnians

admitted to expecting concrete ‘personal advantages’ from integration into the

EU.

To some extent, as has been noted also by the Peace Implementation

Council Steering Board (PIC-SB),16 since the prospect of EU membership was

projected onto BiH, the whole international presence in the country has been

working towards a single objective: to help the rapprochement with Brussels and

guarantee better prospects for prosperity. Amongst other recent declarations, the

Political Directors supervising the peace implementation process stated in this

regard that ‘Bosnia and Herzegovina as a “peaceful, viable state irreversibly on

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course for European integration” has been the longstanding objective of the PIC

Steering Board and achieving this objective has been [also] the focus of OHR’s

work’ (PIC-SB 2008).

Explicit references to the idea of prosperity have become common features

of EU statements and communiqués issued by the PIC. In an effort to encourage

Bosnian political and economic elites to increase their commitment to EU

integration, in June 2007 HR/EUSR Schwarz-Schilling asked for ‘a new

pragmatism to the business of enacting and implementing economic reforms’ as

the only way ‘to turn the promise of prosperity into reality’ (OHR 2007t). Similar

references are made by the Commission in relation to BiH and the rest of the

Western Balkans. Whenever the Commission tries to clarify what are the main

pillars that sustain the EU integration process for the region, the idea of ‘raising

prosperity’ is listed (European Commission 2006). More recently, on the occasion

of their joint visit to Sarajevo, US Vice-President Joe Biden and the then EU High

Representative for Common Foreign and Security Policy (CFSP) Javier Solana

expressed their support for those local ‘leaders who have the courage to reach

across the ethnic divide to find compromise, build trust, foster stability and bring

prosperity to Bosnia and Herzegovina’ (US Government 2009).

The economic benefits of the European integration process are also

emphasized by political elites in the country. For instance, the link between

‘integration with the rest of Europe’ and the opportunity to ‘deliver a better

standard of living for all [Bosnian] citizens’ was chosen as a starting point of the

Bjelasnica Declaration (OHR 2003b), co-signed by the representatives of the

domestic political arena at the time of the 2003 EU/Western Balkans Thessaloniki

Summit.

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Turning from the general population to local elites, the paradox within the

paradox of sovereignty resulting from EU-driven statebuilding has yet another

dimension. As will be demonstrated in the two empirical chapters that follow,

policy-making in Brussels has been strongly influenced by the conviction that

most (if not all) Bosnian political frictions and sources of instability arising from

ethno-religious tensions will be successfully diluted within the wider European

context. EU accession represents the culmination of what could metaphorically be

referred to as ‘a shredding sovereignty process’. By joining the EU, Bosnian

ruling elites will be deprived of several sovereign prerogatives that today

constitute sources of tension amongst them. For this reason, a definitive solution

to the internal sovereignty struggle has been for the most part omitted from the

priority list by EU policy-makers.

An analysis of the two main reform areas that have dominated political

debate in BiH will also demonstrate that, in spite of this idealistic understanding

of the EU integration process, Brussels has nevertheless been pushing for a

technical anchorage of BiH. This takes place through the SAA agreement, which

is designed to produce a series of positive and self-driven reforms, as well as to

impact positively on the overall political process in the country. In the opinion of

EU personnel serving in Brussels and Sarajevo, technical progress within the

framework of the SAA should put BiH ‘automatically’ on the path to European

integration and politico-institutional harmonization. The deadlines, the

conditionality, and the reforms attached to the SAA have been conceived in

Brussels as the only feasible means of overcoming political instability in BiH.

Interviewed on this issue, the Desk Officer for BiH at the EU Commission has

openly acknowledged this strategic choice.

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Obviously, the constitutional reform is at the basis of all. But I believe

that with the SAA we should succeed to produce a chain reaction.

Slowly – at least I hope – the Bosnians will understand that the state

they have does not work and they will start to change it, piece by

piece and without our direct impositions.17

2.1. Ownership and sovereignty in the Bosnian stabilization

process

BiH demonstrates specific characteristics if compared with the legal regimes

established by the UN in pre-independence Kosovo or East Timor. At least

formally, Sarajevo was not a protectorate of the international community, such as

those established with UNSC resolutions 1244 and 1272 (1999a; 1999b) in

Pristina and Dili respectively. In these cases, an international administration was

established, with UN authorities in the field formally tasked with overseeing the

countries. However, the prolonged presence of the international community in

BiH leaves little ground for doubt: this country was and continues to be heavily

influenced by external actors, as it was in the very early stages of the DPA

implementation phase.

To be sure, the international presence in the country has changed its

configuration if compared, for example, with early 1996. At present, BiH is

predominantly under the tutelage and guidance of EU policy-makers.

Nevertheless, as has been emphasized by Gerald Knaus and Felix Martin (2003:

61) ‘in BiH, outsiders actually set that agenda, impose it, and punish with

sanctions those who refuse to implement it’. Moreover, as these two former OHR

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officials have warned, so long as the Western intervention in BiH continues to

resemble the behavior of an ‘imperial power over its colonial possessions’ the risk

that the Bosnian statebuilding experiment will fail remains (Knaus and Martin

2003: 62).

This de facto protectorate status is maintaining the fragile (and for the

most part inefficient) central state institutions but, at the same time, it can also be

seen as a source of instability. Institution-building and democratization initiatives

have been continuously carried out by first the UN and later the EU, under the

watchful eyes of NATO. However, the ethno-religious fractures that are

negatively affecting political and social stability in the country as a whole have

not been tackled directly. The risk that too much time has been wasted without

implementing proper reconciliation strategies or facilitating a solution to the

domestic sovereignty struggle has eventually started to be recognized also by

high-ranking EU officials. Amongst other voices of criticism, a diplomat who

spent four years working in the COWEB openly questioned both the management

of this post-conflict space by the international community and the tendency,

specific to the EU, to duplicate in BiH the model and pre-enlargement policies

experimented with in the Eastern European countries that joined the EU in 2004

(Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and

Slovenia) and in 2007 (Bulgaria and Romania).

The problem is that in BiH we tried to go quicker than the reality of

statebuilding and post-conflict consolidation allows. And in this

context we have a sort of intellectual responsibility. We did not

focus on the real problems of BiH. We saw our sick man, we saw we

had a medicine that had kind of worked in Central Europe and we

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took that medicine again from our shelves to give it to BiH. We did

not play the good doctor. The attentive doctor tries to see what

specific sicknesses his patient really has.18

Stability is a vague term, which can be exploited, politicized, and

developed in many ways. The analysis of the Bosnian context proposed here

develops from a relatively simple and general understanding of stabilization,

which does not hide its normative construction: post-conflict stability in a country

that has gone through civil war, ethnic cleansing and clear cases of genocide

cannot be considered consolidated until there is a reorganization of sovereign

powers among domestic political authorities that allows efficient interactions

between well-functioning multi-ethnic institutions, and provides incentives for

substantial participation and responsiveness of society as a whole.

The last part of this definition is the most delicate. HR Wolfgang Petritsch

emphasized that the socio-political aspects of a stabilization process are by far

more important than the technical achievements registered through meticulous

institution-building engineering. In the words of the former Austrian HR: ‘only

once all citizens – and I stress citizens, not peoples, or ethnic groups, or collective

bodies – only once all individuals can accept and respect the state of Bosnia and

Herzegovina as a reality, then and only then the project of state-building will have

succeeded’ (Petritsch 2006: 6).

This indirect criticism of the international approach in BiH is valid.

However, what is surely positive is that at least, for the past eight years, the

international presence in the country has been put on the path to ‘rationalization’

thanks to the establishment of EU oversight. The system of so-called ‘inter-

locking’ international institutions is in its twilight phase. Today, the key to

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Bosnia’s future lies mainly in the hands of the EU. Brussels has become the

‘magnetic centre’ that holds the weak central organization of the Bosnian state

together: the prospect of European integration works as an incentive that impedes

the numerous centripetal forces characterizing the Bosnian political environment

from provoking critical shocks. Scholars widely acknowledge that there has been

a clear switch from the Dayton phase to ‘the era of Brussels’ (European Stability

Initiative 2002; Ducasse-Rogier 2004; Chandler 2005a; Kerr 2005; Ó Tuathail

2005; Bebler 2006; Hays 2006).

But it is not merely the European perspective that is making the Bosnian

state work. The EU is controlling the most crucial aspects of what has now

become the Bosnian member-statebuilding process. After ten years of NATO-led

missions (first IFOR and later SFOR), Bosnia’s military security is now almost

exclusively managed by an ESDP Mission renamed ‘EUFOR/Operation Althea’.

However, in spite of the presence of Operation Althea, the United States

maintains its military base in Tuzla, and NATO keeps a small backup force at the

Butmir base on the outskirts of Sarajevo. The residual NATO personnel maintain

responsibilities in the areas of defense reform, counter-terrorism, information

sharing with the EU, and investigations against suspected war criminals.19 The EU

Police Mission has undertaken since 2002 the task of creating a multi-ethnic

police force, which was previously handled by the UN. Finally, and most

importantly, the EUSR in Sarajevo has since 2002 been ‘double-hatted’ and is

simultaneously serving as head of the OHR.

In general, observers have enthusiastically welcomed all of these

handovers of responsibility from various international organizations to the EU and

they have moved, as has been rightly pointed out by Bickerton (2005b: 4), from

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‘excoriating the state-builders in Bosnia’ when they were not fully under the

umbrella of the EU, to ‘supporting the EU’s own state-building policy’.

Enthusiasm for the increased role of the EU apart, it is nevertheless possible to

say that moving from the Dayton era to that of European integration requires

those working in BiH to rethink strategy and objectives. This process of

rethinking practical methods of intervention and concrete goals can be undertaken

only by re-opening a very broad and theoretical debate: who should actually be

sovereign?

As has been emphasized in the previous literature review, sovereignty has

internal and international dimensions, both of which are relevant to the discourse

on statebuilding. The international dimension is useful in identifying the legal and

normative foundations of statebuilding initiatives. Internationally, ‘sovereignty

has been and remains the cornerstone of an entire, evolving system of diplomatic

practices, conferring international status and enabling states to interact and

cooperate on the basis of agreed methods and common understandings’ (Heller

2001: 30). Internally, the discourse might be more complicated. Quoting from

John Boli (2001: 54), it is advisable to highlight the distinction between the

polity, which consists in a ‘social unit constituted by a body politic’, and the state

as an institutional complex, which is ‘the structure by which central authority is

organized within that unit’. To have a stable state, one might normatively claim, it

is necessary that the individuals constituting the national body recognize the

legitimacy and support the activity of the governing authority, at all levels of

governance.

Against this backdrop, it becomes clear that in an external statebuilding

effort, international institutions are responsible for this process of identification

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(which in BiH has been particularly arduous due to the war legacies and the

multiethnic nature of the population), especially if they have strenuously

advocated for the consolidation of the multiethnic nature of the state. Hence,

external actors working on the reconstruction of a post-conflict multiethnic state

must distinguish between the polity and the state; moreover, they must address the

crucial question of whether it is the people, the parliament or, more generally, the

central government that are the holders of supreme authority. Different answers

inevitably produce different evaluations of the post-conflict peacebuilding agenda

and statebuilding priorities, and provide different lessons for future interventions

of this nature.

2.2. The DPA: strengths and weaknesses, criticism and

appreciation

Dayton’s flexibility has been very important, especially since it has allowed for a

series of substantial changes and institutional developments in BiH. The

agreement has been rightly labeled as ‘the most impressive example of conflict

resolution’ in contemporary history (Woodward 2001: 258). When the main terms

of the DPA were being discussed, international policy-makers had the immediate

objective of bringing to an end the violent conflict between the three ethno-

religious factions that fought in the civil war, and creating the proper political and

strategic conditions to consolidate security on the ground and prevent any possible

recurrence of hostilities. Using a formula lying half-way between Clausewitz and

Foucault, an observer stressed that the DPA and its very first implementation

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phases were ‘the continuation of the conflict by other means’ (David 2001: 10).

Even if its architecture clearly was a ‘construction of necessity’ (Keane 2001: 61),

it can be argued that it worked well at the end of the civil war.

Beyond the immediate requirements of structuring an international

presence to supervise the peace process, establishing the conditions to obtain and

then consolidate hard security, and providing continuity to the existence of the

Bosnian state, the agreement soon started to reveal some of its limitations. Firstly,

the international presence legitimized on the basis of the DPA behavior typical of

a protectorate regime, without any formal agreement acknowledging the particular

status of dependence. As has been stressed by David Chandler (2005a: 336), the

DPA ‘has enabled international actors, unaccountable to the people of BiH, to

shape and reshape the agenda of post-war transition’.

Secondly, the agreement left each constituent people with its own

particular grievances. At the beginning for instance, Bosnian Serbs were reluctant

to accept the deal, in spite of the fact that the territorial partition imposed through

Dayton was, at least in statistical terms, clearly favorable to them. Dayton

awarded 49% of the territory to the Bosnian Serbs and 51% to the Croat/Muslim

Federation, while pre-war data showed that the Serbs accounted for no more than

31.4% of the total population of BiH. Serbs also strongly opposed the

incorporation of the city of Brčko into the territory of the FBiH. Brčko – which

has always been considered a strategic area by both sides – remained under Serb

jurisdiction from the end of the hostilities until 1999, when an international

arbitration eventually oversaw its demilitarization and paved the way for the

creation of a special district.

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As far as the Bosniak side was concerned, the text negotiated in Ohio and

signed in Paris was particularly disappointing for the lack of any condemnation of

war crimes and mass murders. Bosniaks found it unacceptable that the gross

violations of human rights and ethnic cleansing committed by Serbs and Bosnian

Serbs against the Muslim communities (like in Srebrenica and Prijador) as well as

the cruel repression exercised by the Croats were completely ignored in the peace

treaty. If the episode of Srebrenica represents the most tragic moment in the

history of Europe since World War II, it should not be forgotten that the Croat

army was also responsible for acts of repression or violence against Muslims,

especially in central BiH. The lack of any reference to these crimes created among

Bosniak elites the anxiety to receive justice through the International Criminal

Tribunal for Former Yugoslavia (ICTY) based in The Hague.

The peace settlement was not completely satisfactory for the Croats either;

mainly because they did not get entity status, which was instead granted to RS. In

addition, Croats share with the Muslims a common fear. Their respective minority

groups still living in RS are the object of marginalization: they are excluded from

playing an active role in the RS National Assembly and other key institutions of

the Serb Entity. However, the marriage of convenience between Bosniaks and

Croats ends here; the latter have worked for the exclusion of Muslims from

political life in the cantons of the FBiH where they are in the majority with the

same intensity that Bosnian Serbs have devoted to a similar objective in RS.

When it comes to the confederal structure created by the DPA, the

agreement has one major flow. The excessive emphasis on territoriality in the

institutional framework is unlikely to be overcome, also because since its

establishment, it has automatically favored the perpetuation of ethno-nationalist

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politics. As has been emphasized by Sumantra Bose (2007: 140), the institutional

architecture created on the basis of the DPA can ‘provide the basis for democratic

stability in moderately segmented societies like Switzerland and Belgium’ but it is

unlikely to work ‘in deeply divided postwar societies like Bosnia’.

2.3. The High Representative and the Bonn Powers

The role of the High Representative and his intrusiveness in Bosnian political life

can justified by making reference to the idea of conditional sovereignty. When

national authorities are unable to undertake their key responsibilities towards the

domestic constituency, they can be legitimately confined by an international

intervention (Etzioni 2006). However, for how long and how deeply can

international institutions exercise their intrusiveness without creating excessive

distortions in the domestic political environment?

Under the DPA and the so-called Bonn Powers, the HR was given an

undisputedly dominant position in Bosnian political life. At its meeting in Bonn in

December 1997, the Peace Implementation Council (PIC) requested the HR:

firstly, to adopt binding decisions when local parties seemed unable or unwilling

to act; and secondly, to remove from office public officials who violated legal

commitments or, in general, the DPA. The section of the PIC conclusions that

invested the HR with these powers proceeds as follows:

The Council welcomes the High Representative's intention to use his

final authority in theatre regarding interpretation of the Agreement

on the Civilian Implementation of the Peace Settlement in order to

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facilitate the resolution of difficulties by making binding decisions,

as he judges necessary, on the following issues: a. timing, location

and chairmanship of meetings of the common institutions; b. interim

measures to take effect when parties are unable to reach agreement,

which will remain in force until the Presidency or Council of

Ministers has adopted a decision consistent with the Peace

Agreement on the issue concerned; c. other measures to ensure

implementation of the Peace Agreement throughout Bosnia and

Herzegovina and its Entities, as well as the smooth running of the

common institutions. Such measures may include actions against

persons holding public office or officials who are absent from

meetings without good cause or who are found by the High

Representative to be in violation of legal commitments made under

the Peace Agreement or the terms for its implementation (PIC 1997:

chapter 11 para 2, emphasis added).

From the beginning of his mandate, the HR has intervened substantially

and repeatedly in the institutional life of the country. In Annex 10, as agreed upon

at Dayton, the HR was given just a general responsibility for the civilian

implementation of the peace settlement and was envisaged as a sort of ‘father

figure’ (Keane 2001: 74). A few years later, when Carlos Westendorp took up

office as HR in 1997, he openly admitted: ‘[a]nnex 10 even gives me the

possibility to interpret my own authorities and powers’ (as quoted in Chandler

2000: 52).

Amongst several other processes, one striking example of the HR’s

massive intrusiveness concerned defense reform. This was launched in April 2003

through the adoption of a series of measures which impacted deeply on the pillars

of the Bosnian military structure. In order to overcome the well-known limitations

of weak civilian control over the two entities armed forces and strengthen state-

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level command and control, the HR opted –autonomously and virtually in the

absence of any kind of cooperation from the Bosnian political authorities – for the

suppression of the Supreme Defense Council of RS (the HR justified this decision

pointing to the Council’s failure to prevent the violation of some UN resolutions

in RS) and passed a series of decisions amending articles of the RS Laws on

Defense, the Army and the Federation Law on Defense and even some provisions

of the Entity constitutions. In line with the requests made by the Council of

Europe (CoE 2004), these decisions aimed to strengthen state-level command and

control of BiH’s armed forces and to harmonize the entity constitutional

provisions with the BiH constitution on all military matters.

This example illustrates the degree of influence and power developed by

the HR over the years. Observers have claimed that most Bosnians share the same

criticism against the HR: ‘unelected [and] with the right to legislate and remove

officials without any right to appeal’ (Moore 2004). What critics finds

unacceptable are the immediate executive effects of his decisions regarding

removals or suspensions. These decisions are regularly adopted and implemented

without a previous hearing of the person accused, and they cannot be appealed

before any court in BiH or elsewhere, even if in some cases removals imply a ban

for life from holding any public office.

But the HR does not just send ‘inappropriate’ officers home. After the

2002 general elections, Lord Paddy Ashdown also decided to submit all

candidates proposed by the political parties for major ministerial positions, both at

Entity and state level, to an ad hoc evaluation process. The HR has also

nominated high-ranking officers for key judicial functions, state prosecutors

included. This brief look at the effects and implications of the HR’s decision is

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helpful in understanding how domestic politics has been influenced since the very

first use of the Bonn Powers.

What is of particular interest is that in recent years the main assaults

against the practices of the HR have come not only from local elites and NGOs,

but also from the Parliamentary Assembly of the CoE. BiH joined this

international organization on April 2002. Since then, the Strasbourg-based

institution has on several occasions complained about the powers exercised by the

HR. The main issue raised by the CoE has always concerned the apparent

incapacity of the HR to relinquish responsibilities in favor of Bosnian domestic

elites as rapidly as possible. It is interesting that already in 2004 Strasbourg was

claiming that:

More than two years after accession to the Council of Europe, the

time has come to define a clear strategy for transferring

responsibilities from the High Representative to domestic

authorities. The question indeed arises as to the extent to which the

current role of the HR is compatible with membership of BiH in the

Council of Europe. Full ownership is crucial for the country

becoming a credible candidate for further integration into European

structures (CoE 2004).

Pressure from the CoE (combined with the growing involvement of the

EU in BiH) had an effect: slowly, the HR has become less intrusive. In recent

years, the number of laws directly imposed by the HR and the number of public

officials dismissed has substantially decreased. This appears to indirectly confirm

that progress towards local ownership is intensifying. As we will see later in this

chapter, the assessment elaborated by the Venice Commission (another institution

working under the CoE umbrella), became a term of reference in the process for

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the closure of the OHR, abolition of the regime established under the Bonn

Powers, and the creation of a reinforced EUSR Office (cf. section 4.3. in this

chapter).

The presence of the OHR is not seen in the same way by politicians from

different ethno-religious groups. As emphasized by a correspondent of ISN

Security Watch in Sarajevo, when in mid 2006 the PIC-SB announced that the

process for the closure of the OHR had formally been launched and was probably

going to be completed in one year, several Croats and Bosniak representatives

expressed doubts and concerns. In particular, Bosniak politicians have repeatedly

declared that they would prefer the OHR to keep its presence, activities, and the

right to make use of the Bonn Powers at least until the EU formalizes the

acceptance of BiH as a full candidate member (Alic 2006: 5).

On the contrary, Bosnian Serbs have engaged in a permanent struggle with

the international envoy to BiH. Several episodes of this confrontation will be

highlighted in the following two empirical chapters. In particular, extensive

reference will be made to the struggle between the current RS leadership and the

OHR. This confrontation has been clearly political in nature. However, in recent

times, the struggle has become so sophisticated that the RS Government has even

tried to question the legitimacy of the Bonn Powers on legal grounds. Relying on

complex juridical arguments, the current RS leadership has defined the Bonn

Powers as a violation of international law (RS Government 2009: 12-13).

Continuing their polemic against the legitimacy of the OHR as it evolved

after Bonn in 1997, RS leaders have labeled BiH ‘a deeply divided and terrified

state’ (RS Government 2009: 10), an ‘unproclaimed protectorate and captive

state’. In launching this accusation, they are also clear in saying that ‘the

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instruments for creation and maintenance of such a situation are so-called „Bonn

Powers“ and [externally] installed judiciary, which prevents self-sustainability and

progress of BiH’ (RS Government 2009: 5). The most recent attacks from Banja

Luka have focused on the supposedly biased approach by the OHR in dealing

with each of the three constituent peoples and on the argument that keeping the

international protectorate through the OHR informal and unproclaimed has

allowed international policy-makers to avoid their responsibilities for the

government of the country.

From the beginning of the mission of the international community in

BiH, its civilian part – High Representative and his numerous

offices, created and cherished with great care the culture of

dependence, helplessness and fear. It was not equally distributed to

all three constituent peoples. Dependence was reserved for the

Bosniaks ... The protectorate in BiH has never been declared, as that

would mean full nullification of the Dayton Agreement, and its

Annex 4 as the BiH Constitution would particularly be superseded.

Apart from that, declaring protectorate also implies responsibility of

the protector for the overall condition, relations and results of such a

foreign administration (RS Government 2009: 6, 8).

It is beyond the scope of this dissertation to analyze the validity of the

arguments put forward by the RS Government in its attempt to challenge both the

moral and legal authority of the OHR and the use of the Bonn Powers. It is

relevant here to quote again the Yugoslav writer Ivo Andrić, winner of the Nobel

Prize for literature in 1961. In his Bosnian Chronicle, Andrić attributes to a citizen

living in his hometown of Travnik at the beginning of the Nineteenth Century a

comment that, to some extent, perfectly describes the endemic adversion of

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Bosnians towards foreign rulers: ‘the Best vizier20 we ever had … was the one

who got as far as the frontier, then went straight back to Istanbul and never even

set foot in Bosnia’ (Andrić 1963: 9).

2.4. Participation and nationalist partitions in BiH

Without necessarily supporting the severe criticism and claims made by the RS

Bosnian Serb leadership against the OHR, it nevertheless seems fair to say that the

prolonged interference of the HR in Bosnian political life inevitably results in

distortions of the democratic development of the country. Despite this, if we turn

our attention from the OHR to certain concrete achievements in the

democratization process of the country, there are arguments for optimism.

Ongoing progress in the effective running of elections has been made since 1997

(the year that Bosnians were allowed to exercise their vote for the first time

following the entry into force of the DPA). The OSCE, CoE, and the UN – using

personnel on the ground and the deployment of short-term observers – have

invested significant efforts in this area. Implementing Annex 3 of the DPA, the

OSCE has given a decisive contribution to the establishment of the Bosnian

voting system. Given the institutional and structural complexity of the Bosnian

context, the rules issued by the experts sent from Vienna and from the Warsaw-

based Office for Democratic Institutions and Human Rights (ODIHR) of the

OSCE resulted in an extremely articulated system. For instance, refugees retain

the right to vote in their communities of origin and thus have continued to be

represented in their pre-war hometowns, often a considerable distance from their

actual place of residence.

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The early years of democratic experimentation were not easy ones for the

competent international organizations. For example, the election in September

1998 of the ultranationalist Serb leader Nikola Poplašen as President of RS

demonstrated the limitations of the OSCE operating beyond the purely technical

aspects of the electoral process in BiH. Poplašen became President at the expense

of the moderate candidate Biljana Plavšić, who had been RS President for the

previous two years and was clearly the favoured candidate of Western observers.21

Analysing the 1998 RS elections ex post, it is possible to conclude that the

election of Poplašen – who was removed from his post by the HR only six months

after the electoral victory (OHR 1999) – was favoured by the OSCE guidelines,

which established a majority system based on a single direct ballot of registered

voters (OSCE 1998: 6) despite the fact that other international observers operating

in the country had warned against the risks associated with this system.22

Technical and political complexities apart, it is possible to identify some

encouraging signs regarding the improvement of the democratic system in BiH.

For instance, since October 2002 the Bosnian authorities have been in a position

to organize and run elections independently. A report from the CoE (2004: 21)

confirmed that ‘for the first time since the end of the war, the October 2002

general elections were administered by the domestic authorities themselves and

not by the OSCE. Given the country’s unique constitutional framework, they were

largely in line with international standards for democratic elections’.

When this transfer of responsibilities took place, it was welcomed by the

Ambassadors of the PIC-SB as ‘a great success for the democratic institutions of

Bosnia and Herzegovina’, especially because – they noted – the Bosnians

‘performed that role with commendable competence and professionalism’ (as

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quoted in OHR 2003a). Practically speaking, things went even better at the

following 2004 municipal elections. In fact, these were the very first elections

completely organized, run and even fully financed by domestic means. The

municipal commissions worked independently, as the OSCE limited its

intervention to the pre-electoral phase, instructing its experts to focus their work

on increasing citizens’ trust and participation in the whole electoral process

(OSCE 2004).

Was the ODIHR successful in this complex undertaking? In spite of

considerably expanded efforts, data collected in the field appears to confirm that

trust and participation remain points of weakness. Unfortunately, lack of

participation and, more generally, of confidence in the Bosnian political

establishment remain sources of concern. As observers have stressed, ‘low voter

turnout … signals a growing disillusionment among voters with the political

process, and a growing popular disgust with political leaders of all stripes’

(Donais and Pickel 2003: 3). If one focuses on the specific details that emerge

from available statistics, the picture appears even less encouraging. At the 2004

municipal elections there were two million and several hundred thousand voters

registered. Of these, only 45.52% actually went in the electoral booth to exercise

their vote. Moreover, this percentage falls significantly if the specific participation

of young people is taken into account. Data demonstrate that, among the million

people that went to vote, only 7-10% were in the 18 to 30 year old category (Alic

2006: 2).

Representatives of the international community hope that the above trend

will fade over time. The 2006 general election already registered a significant rise

in participation, which reached the more encouraging level of 54.48% (OSCE

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2006). However, years of very low interest in politics and inconsistent

participation appears to show that something in the very expensive outside-in

democratization project has not worked properly. Leaving aside for a moment the

impact of the OHR on Bosnian democratic development, one can identify several

disincentives that are not directly connected with the presence of the international

community in BiH, but that are endemic to the domestic political environment.

For instance, political analyst Tanja Topic stressed that in post-war BiH elections

are repeated very frequently – perhaps too often – thus becoming a routine that

induced people to lose interest (as quoted in Associated Press 2004). Moreover,

this local analyst also added: ‘nobody elected so far has managed to solve any of

the problems poisoning people’s everyday life, and in the eyes of the average

citizen, all parties have become the same’ (Associated Press 2004).

In addition to these factors, one can hypothesize that in recent years low

people’s confidence in political parties may have been exasperated by three other

elements. Firstly, politicians have been opportunistically moving from one party

to another: 370 out of 450 top party list leaders have changed their allegiance

even up to four or five times. Secondly, the presence of young people in the

electoral competition is virtually non-existent, since the same old political class

has prevented young candidates from finding their political space and running for

election. Thirdly, recent domestic confrontation has confirmed that there are still

few alternatives to nationalism.

After the DPA brought the conflict to an end, the three national parties

formerly at war ‘managed to remain the central points of reference for the security

and political identities of the sections of the population they represent’ (Alic

2006: 2). These parties – SDA, the Bosniak Party founded by Alija Izetbegović in

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1990; HDZ-BiH, the Croatian Democratic Union of Bosnia and Herzegovina

created in 1990; and the SDS, the Serbian Democratic Party founded by Radovan

Karadžić in 1992 – were to a large extent defeated at the last general elections in

2006. However, the parties that won the elections systematically continued to feed

their constituency with nationalism and hatred. While ‘old’ nationalist parties lost

a high share of their support, it is also true that the supposedly ‘moderate’ parties

that won the elections have thus far confirmed – in their strategies, interactions,

and modus operandi – that confrontation based on ethnicity remains a crucial

factor in the Bosnian political arena.

This came as something of surprise to the international community, as a

top-ranking official serving at EUPM in Sarajevo candidly admitted when

interviewed on the issue exactly one year after the elections. It is worth quoting

him in details.

Not even one year had passed after the 2006 elections and I realized

that internationals missed nationalist parties. This became clear

especially in the last months of crisis. There were great expectations

on the supposedly social democrat or moderate parties that won last

elections. We were not prepared to handle a renewal of the ethnic

tension and an accentuation of the ethno-nationalist rhetoric, at all.

Paradoxically that this might sound, we miss the nationalists! Look

at what is happening in Republika Srpska. The SNSD is a totally RS-

based party. They are Social-democrats in their name and mottos,

but at the end of the day they are nationalist and they feed their

constituencies with nationalism. So you might wonder: what is the

difference with SDS? Leaving aside pointless consideration on right

and left wing, there is one answer that matters: the old SDS was a

party that maintained its action on the whole territory of BiH. Or, at

least, it tried to do so. After all, it was one of the founding parties of

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BiH in 1991. SNSD is an RS party, and that’s it. They have no

orientation towards Sarajevo. 23

The three negative trends in the Bosnian political arena outlined above are

particular features of the domestic environment; nonetheless, as critics have

repeatedly pointed out, the international authorities might also bear a certain

degree of responsibility for the low levels of interest and participation in national

politics. Amongst other scholars who focused on the responsibilities of the

international community, David Chandler (2005c: 308) has emphasized that

basically all the international institutions involved in the reconstruction of the

Bosnian state have dangerously tended to keep statebuilding strategies separated

from politics: ‘there is a tendency to see state-building as a technical or

administrative process, one which does not require building a popular consensus

for policy-making’. This assessment can be fully endorsed. As the analysis in the

following chapters reveals, the EU member-statebuilding exercise has been

characterized by the marginalization of politics on the one hand, and an excessive

focus on institutional and technical process rather than societal ones on the other.

In line with Chandler’s analysis, Ivan Krastev (2002: 43) has complained

about the growing tendency amongst international institutions (and Western states

in general, which are also the most active with regards to their bilateral

cooperation initiatives in the region) to dangerously perceive democracy ‘less as a

matter of relations between leaders and led than as a set of institutions whose

existence and effectiveness can be measured in concrete ways that are

commensurate across cases’. Such a technocratic approach to democracy is

flawed, since it reveals the tendency to overlook ‘the internal logic of politics and

the ways in which citizens view their governments’ (Krastev 2002: 44).

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In this specific regard, an interesting analysis and at the same time a clear

policy proposal has been offered by Roland Paris (2004), who expressed

disappointment at the tendency of multilateral peacebuilding mission to organize

elections in a post-conflict environment as soon as a minimum degree of security

has been achieved. To be precise, Paris expressed concern at the tendency to

deploy significant international resources – both human and financial – to

organize elections in realities that are still not ready for democracy. This general

criticism can be supported. As the Bosnian case reveals, if the political

environment is still suffering from a recent conflict, political stability can be hard

to achieve within a short time frame and elections end up being held too often, to

the point of becoming a routine for which people lose their enthusiasm. On closer

examination, Paris takes an even more radical stand on the issue of elections in

post-conflict societies, when he claims that peace-builders should actually refrain

from running any elections at all, at least until they have clear evidence that

moderate parties enjoy sufficient support ‘to prevail over immoderate parties at

the polls’ (Paris 2004: 189-90).

3. The statebuilding dilemmas and the Bosnian case

The history of the Bosnian breakup and the ethnic war that took place between

1992 and 1995 represents a classic example of state failure. As recognized by the

State Failure Task Force (SFTF 2000: 23), ‘state failure is a new term for a type

of serious political crisis exemplified by events that occurred in the 1990s in

Somalia, Bosnia and Herzegovina, Liberia, and Afghanistan’. Given the

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complexity of its socio-political environment, the legacy of the ethnic conflict,

and the pervasive and prolonged interferences of the international community at

all levels of governance in the country, BiH has now also become a key case in

understanding the dynamics of internationally-driven statebuilding and assessing

the effectiveness of post-conflict stabilization policies. The reconstruction process

launched on the basis of the DPA offers a unique perspective on all the three

dilemmas of statebuilding elaborated in the previous chapter.

Moreover, the case of BiH offers a unique perspective on the difficult

transition from international to EU-driven statebuilding. Commenting on the UN

methodology for early statebuilding efforts in BiH, an official in the Enlargement

DG of the Commission used a powerful metaphor in this regard, when he spoke

about ‘Rolls-Royce statebuilding’. His analysis of the challenges of the handover

from internationally-led to EU-driven statebuilding proceeds as follows:

The EU, and particularly the Commission, committed to the Bosnian

statebuilding project with the idea that the old ‘international’

methodology had to be abandoned. Before the EU-driven

statebuilding was launched, BiH was subject to what we used to

refer to as Rolls-Royce statebuilding. Basically we tolerated the

following approach: whoever thinks to have a good idea, model,

example from its own national experience, is entitled to work on the

specific reform (obviously, also by putting the money and the

necessary expertise). In this way, we copied and pasted many

institutions, so that most institutions in BiH resembles ours back

home. Basically, this is the way we created the state level from the

late nineties until the end of the Ashdown era. Unfortunately,

everything has taken place without rationalization and turned out to

be expensive and tremendously inextricable. This is why today we

speak in terms of conditionalities and technical progress.24

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3.1. From the Western Balkans towards Western Europe: the

good-neighborhood effect on BiH

Maintaining the momentum and the credibility of the EU membership prospective

in the Western Balkans is of the utmost importance, in particular, with a view to

promoting what, paraphrasing Keohane, can be referred to as ‘the good-

neighborhood effect’. Even in relatively recent times, there have been worrying

signs of a tendency for violence to erupt and episodes demonstrating that even

simple political tensions can spillover state borders within the region.

An example of how easily violence can still erupt in the Western Balkans

can be found by looking back at early 2004. In that year, the riots that affected

Kosovo provided clear evidence that the whole regional architecture was still

based on very fragile balances and was still deeply affected by inter-ethnic and

religious tensions. The violence that erupted in Kosovo was followed, within only

a few days, by outbreaks of tension in parts of BiH, both in the FBiH and RS: the

burning of a Serbian Orthodox Church in Bugojno (a city of the Bosnia Federation

very close to the Inter-Entity Boundary Line, IEBL) was followed by the stoning

of the Islamic Community’s building in Banja Luka, the capital of RS.

Apart from being permeable to violence, intra-regional borders in the

Western Balkans have tended to prove ineffectual also when political tensions

related to ethno-religious fractures re-emerge. This happened, for instance, in the

critical days following the Kosovo Declaration of Independence. On 17 February

2008 the Kosovo Assembly eventually formalized its separation from the

Republic of Serbia. Pristina made the announcement on a Sunday following the

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presidential elections in Serbia, thus respecting the timetable that had been

suggested by its most supportive European partners and, crucial for the Kosovars,

by Washington. The following day, the US recognized Kosovo as an independent

state while instead, on the other side of the Atlantic, no common EU position

could be reached on the matter. The EU General Affairs and External Relations

Council (GAERC) was concluded with the announcement that ‘Member States

will decide, in accordance with national practice and international law, on their

relations with Kosovo’ (European Council 2008a). On the ground, there were

security incidents involving Kosovar Serbs in Mitrovica and in the city outskirts,

which induced KFOR to temporarily close off all communication roads with

Serbia. With the full backing of Russia, Serbia urged the UNSC to reject the fait

accompli as an unacceptable attempt of illegal secession. At the same time, the

Prime Minister Vojislav Koštunica recalled one by one the Serbian ambassadors

from those countries that recognized Kosovo as a sovereign state and had opened

diplomatic relations with the government in Pristina.

The situation was promptly exploited by nationalist elites in other

agitated provinces of the region. Amongst the various reactions from other areas

experiencing sovereignty struggles, that from neighboring BiH was again the most

worrisome for the international community. Following the announcement by

Pristina, the RS Prime Minister Milorad Dodik announced that the Serb entity of

BiH had entered into a ‘state of democratic rebellion’ (Media Intelligence Agency

2008). This statement was followed by a resolution adopted by the RS National

Assembly reiterating the admissibility of a referendum for separation of the Serb

Entity from the rest of BiH.

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3.2. One, two or three BiH?

The DPA, which was agreed at a US military air force base in Ohio and signed in

Paris at the end of 1995, has simply ‘taped together’ the pieces of BiH that

emerged from the civil war. However, the political entities that make up this

multiethnic experiment have been left separated by an IEBL and by a series of

institutional asymmetries that make the work of the central government extremely

difficult. The asymmetries are particularly striking if one compares, for instance,

the relatively simple structure of RS with the complex institutional castle that has

been installed in the FBiH. Ironically, the same international elites that have

drafted the DPA and then worked on its implementation have become the most

vocal critics of the current structure. For instance, speaking at the UN in Geneva

and advocating for the EU’s member-statebuilding in BiH, the then EU

Enlargement Commissioner Olli Rehn commented on the excessive complexity

and fiscal unsustainability of Dayton BiH asking ‘with only a small dose of

sarcasm ... how anyone can call a country ungovernable if it has as many as 13

governments for just over four million people? Which other country of the size of

Bosnia and Herzegovina has over 700 members of several parliaments, over 180

Ministers, 13 Prime Ministers and three Presidents?’ (Rehn 2005).

Building on Barry Buzan’s four ideal models of possible nation-state

architecture, it can be argued that the Dayton experiment perfectly reflected the

ambition of modeling a multination-state with a federative structural design.

Distinct from a state with a federal political organization, federative refers to

States which contain two or more nations without trying to impose

an artificial state-nation over them. Separate nations are allowed,

even encouraged to pursue their own identities, and attempts are

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made to structure that state in such a way that no one nationality

comes to dominate the whole state structure (Buzan 1991: 76).

In addition to this structural weakness, two other problems have

negatively influenced the initiatives for the stabilization of a multiethnic polity

that followed the DPA. On the one hand, the Bosnian political context remained

dominated for too long by the old nationalist factions. While these were partially

defeated in the 2006 general elections, the supposed moderate parties that

emerged have continued to feed their constituency with ethno-nationalist rhetoric.

Added to this, state-weakening parallel structures (and illegal economic practices)

appear to have resisted the numerous counter initiatives undertaken by

governmental and non-governmental international actors. Corruption and

organized crime thus remain a major obstacle on Bosnia’s path towards full

integration into Euro-Atlantic structures (Petritsch 2008).

In BiH, central authorities are weak and hindered by both the de facto

ethnical partition of the state and the de jure repartition of responsibilities between

Sarajevo, the entities, and the myriad peripheral centers of governance within the

entities.25 In common with other countries of the Western Balkans, external

statebuilding in BiH has produced a complex situation: ‘elites and constituencies

throughout the region increasingly share a European orientation, but indigenous

political and structural constraints tend to run counter to European priorities and

conditionalities’ (van Meurs 2004: 5). Therefore, while the EU works on

institutional stabilization and privileges a technical approach to its member-

statebuilding, underlying fractures remain dangerously ignored.

The principal draw back of this approach is that it leads to a dangerous

marginalization of reconciliation. For a long time in the post-Dayton stabilization

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process international statebuilders overlooked evidence that ‘the fear of becoming

a minority in someone else’s nation-state was exactly what was (and still is)

motivating each community fight, from Croatia to Macedonia’ (Woodward 1997:

63). Only recently, the ‘minority complex’ has started to be taken into

consideration by the international community. Addressing the OSCE Permanent

Council in Vienna on June 2008, HR/EUSR Miroslav Lajčàk openly talked about

the persistence of ‘competitive nationalist agendas’, and made the following

points:

The fundamental problem is that each of the country’s constituent

peoples still has widely different visions of the country’s history,

current status and future constitutional structure … To a large

extent, the problems of BiH stem from an exceptionally developed

and persistent sense of communal insecurity. This is the twin

legacy of the war and the old the Yugoslav system, in which each

people had its “own” republic or autonomous province – except, of

course, the citizens of multiethnic BiH. Now, in an independent

Bosnia and Herzegovina, everybody seems to want a unit, if not a

state, of their own. Nobody wants to be a minority. As a result,

significant numbers of citizens still tolerate – rather than embrace –

the idea and fact of BiH statehood (OHR 2008b: emphasis added).

3.3. Reconciled people in a stable state: complexity in the

Bosnian statebuilding project

The international statebuilding effort, which has now become the EU-led member-

statebuilding effort for BiH seems to respect the traditional view of both

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sovereignty and power. The Bosnian stabilization process is pursued by

contrasting the dispersions of sovereignty originated by the DPA. The problem

with this approach is that it tries to build a state in a top-down manner, while the

grass-root work is left to NGOs and only sometimes, in the best case scenario, to

the limited resources made available through the OSCE channel. To overlook the

tensions that characterize a complex society like post-Dayton BiH can be critical.

Especially because, as stressed by Sumantra Bose (2002: 3, 10), ‘Bosnia is not just

a society divided but a society polarized on the most basic of issues – the question

of legitimacy of the state, its common institutions and its borders … understanding

Bosnia necessarily involves an appreciation of complexity’. Critics of the

strategies for BiH that are agreed in Brussels, argue that being ‘informed by a

vision of technocratic efficiency [the EU approach] is not directly aiming at

bridging the gap between citizens and institution’ (Bechev 2005: 3).

The debate over the appropriate degree of international intrusiveness in

post-conflict reconstruction projects dominated peacebuilding studies for several

years after the end of the Cold War. Assessing the Bosnian statebuilding project

from its very initial phases, Roberto Belloni (2007) has attempted to move beyond

this debate. Making a series of interesting observations, he successfully

overcomes a long-standing dispute among three groups of scholars. In his volume

on State Building and International Intervention in Bosnia, Belloni unhinges the

confrontation between historical determinists (those who argue that only the

creation of ethnically homogenous states is sustainable in the long run),

interventionists (those who advocate invasive and protracted international

intervention) and autonomists (those who adopt radical standpoints against

international intervention but without offering alternative forms of regulation).

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Building on an analysis of societal, institutional, political, and strategic

factors, Belloni proposes a simple but convincing methodology. In his opinion, the

literature on peace- and statebuilding should be less centered on what degree of

intervention and intrusiveness is ‘desirable’ in post-conflict stabilization projects.

This ‘quantitative’ focal point should be abandoned, in favor of an approach

which asks what type of interaction need to be established between peacekeepers

and statebuilders on the one hand, and local actors on the other. Marginalizing the

‘how much intervention’ question, the key problems that experts on BiH should

address becomes more qualitative and policy-oriented: ‘why intervention has been

somewhat disappointing and how it could be restructured to meet the expectations

and needs of other similar cases of multilateral intervention in weak and failing

states’ (Belloni 2007: 5). In line with this methodological suggestion, the

following two empirical chapters analyze the developments in the overall

constitutional reform process and the reorganization of the Bosnian police with a

view to assessing the quality of EU-driven statebuilding.

Fifteen years of international presence in BiH suggests that foreign

statebuilders should approach their mission with better articulated bottom-up

strategies and enhanced coordination between different agencies, thus minimizing

the risk of creating phantom states that are not self-sustaining and need to be

babied for decades with continuous injections of external financial aid.

Specifically, Belloni argues in favor of policies oriented towards grass-root

reconciliation, and criticizes international agencies for their prolonged tendency to

‘consider Bosnia as a blank slate’ (2007: 97).

To be sure, such a criticism is not new in the academic literature or in

policy analysis. However, Belloni moves beyond previous contributions by

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extending his investigation to the reconstruction of the, so to speak, ‘psychology’

of international statebuilding institutions. He successfully demonstrates that

international agencies have not been able to facilitate the emergence of a truly

stable BiH since they have failed to focus on a specific operational direction. An

analysis of the different priorities and operational difficulties faced by main

international actors in BiH (namely, the US and the EU) will confirm this

assessment.

The empirical findings of this thesis confirm that, not only has the modus

operandi of the international community in BiH lacked coordination; more

critically, international and EU efforts have not been backed up by a clear and

definitive acceptance of an institutionalized separation of the three ethno-religious

factions formerly at war, nor by a resolute promotion of pluralism, multi-ethnicity,

and affective (but costly) strategies for reconciliation. External actors have failed

to find an appropriate solution to the statebuilding operational dilemmas. Even the

launch of EU member-statebuilding has not helped a substantial switch of modus

operandi. The vertical dilemma has been for the most part resolved by privileging

a top-down policy orientation, in other words, by focusing attention and resources

on the interactions with the local elites. As a result, statebuilders have regularly

been dragged into the blame games of domestic political confrontation, for which

they were not always prepared. Similarly, there has been a lack of rationalization

of financial and human resources for different stabilization efforts. The character

and quality of external intervention – which have metaphorically been

encapsulated in the idea of the horizontal statebuilding dilemma – have been

predominantly technocratic.

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International agencies can therefore be criticized for having a ‘bias

towards maintaining the status quo’ and for procrastinating over a definitive

solution to the Bosnian ‘stateness problem’ (Belloni 2007: 173, 17-19). This

mental predisposition has induced internationals to overlook the need for

structured, coherent, and stabilizing changes. As will be shown, this predisposition

has not changed since the EU integration became the primary focus of all

international efforts in BiH. One of the most particular features of the EU’s

member-statebuilding in BiH has been a tendency to procrastinate on finding a

solution to the internal sovereignty struggle, in the conviction that once integrated

into the larger European family, this struggle would be diluted and subsequently

resolved by systematic interaction in the post-nation state union. It is possible that

one day we will witness the success of this strategy. However, the continued

ethnic confrontation in the country indicates that the risks of separation are still

very real (Parish 2009) and all the financial, political, and diplomatic efforts to

preserve a unified multiethnic BiH may come to nothing after fifteen years.

Partially in line with what has been suggested by Stephen Krasner

(2004), Belloni also advocates for the formalization of shared-sovereignty

institutions from the initial stages of statebuilding projects. These arrangements

represent fair and more transparent alternatives to both massive and intrusive

international missions on the one hand, and ‘naive calls for domestic autonomy’

on the other (Belloni 2007: 6). The experience in BiH has shown that while

international post-conflict initiatives are systematically accompanied by

proclamations on ownership, capacity-building, and domestic autonomy, they

clearly maintain neo-colonial attitudes and end up compromising self-governance

and democracy.

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Arguing in favor of transparent and well-structured shared-institutional

arrangements, it is possible to lift up that cloak of naivety that has often

characterized the literature on post-conflict intervention and the role of

multilateral institutions in crisis areas. Moreover, this policy prescription is also

relevant to addressing another crucial aspect of intervention today. While the

prolonged interference and external regulation of post-conflict societies is justified

by making reference to the idea that sovereignty is an internationally-shared

responsibility, international missions tend to encounter difficulties in dealing with

all the implications of such reinterpretation of sovereignty once they are actually

on the ground.

While calling for a better definition of roles and mission objectives and

for the formal appointment of international experts in domestic institutions of the

recipient state, Belloni does not overlook the inevitable dichotomy between the

objective needs of the domestic environment and the institutional interests of both

multilateral organizations and their most important sponsoring states. As he points

out, regardless of the type of mission they undertake or the extent to which their

personnel can be integrated into local institutions, international agencies remain

‘organisations with their own institutional interests, priorities and objectives

resulting from the self-interest of their member states. Because self-interest is not

necessarily in tune with the needs of a country recovering from war, the overall

coherence and effectiveness of international intervention will always be difficult

to ensure’ (Belloni 2007: 175-76).

An analysis of the two main reform processes underway in BiH at

present supports this assessment. However, the tension created by conflicting

national interests and their impact on multilateral policy-making is not new. Even

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practitioners have openly recognized the limitations of multilateralism. For

instance, examining the performance of the OSCE in BiH, Robert Barry (2002:

11), an American diplomat with a consolidated experience in multilateral settings,

has pointed out that ‘the Bosnia mission evolved into a truly multinational mix

reflecting the interest of OSCE member governments that paid the basic salaries

of seconded mission members’.

Apart from resulting in organizational ambiguities that stem from the

conflicting interests of member states, international multilateral institutions are

often characterized by policies and, in the most extreme cases, even by an open

competition to legitimize their primacy one over the other. For example, when the

post-conflict reconstruction of the Western Balkans was launched, a joke spread

among Western diplomats. Commenting on the way in which the numerous

international agencies and organizations were trying to carve out a proper space in

the region, practitioners observed that the various missions ideally designed to

produce a system of ‘inter-locking’ actors were too often working as ‘inter-

blocking’ institutions. An example is the reaction to the UN announcement that it

was about to pull out the police training mission in BiH. The EU and the OSCE

competed to take over the UN mission. Ultimately, Brussels prevailed over the

Vienna-based pan-European organization, despite the fact that back then the latter

had a more consolidated experience in this specific field and already established

strategic Police-Matter Unit coordinating similar exercises from Vienna.

Notwithstanding this often negative aspect of international missions, the

EU retains the specific potentials to exert a stabilizing influence: “[t]he long term

policy of the Europeanisation of Bosnia and the surrounding region is an

important step forwards from short-term, ad hoc conflict management strategies’

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(Belloni 2007: 174). The long term perspective provided by the prospect of EU

membership undoubtedly represents a positive qualitative difference from the

predominantly short- and medium-term objectives that normally drive institution-

building initiatives in crisis areas and post-conflict scenarios.

4. Beyond the sovereignty paradox: EU member-

statebuilding in BiH

Looking at the websites of the EUSR or of the Delegation of the European

Commission in BiH, one is struck by the series of animated images and banners

that have been developed to symbolize ‘the EU commitment to BiH’. One

particular features stands out that each time that the webpage is reloaded, the stars

of the Bosnian flag start to spin in a circle, until they inscribe a drawing of the

Bosnian state boundaries into a crown of twelve stars on a blue background,

which evidently recalls the flag of the EU. This rather particular ‘e-marketing’ of

the EU prospect of membership arrives in one of the most delicate moments of

post-Dayton BiH. Spinning stars apart, this section highlights the main strategic

peculiarities of the EU’s member statebuilding in BiH, thus paving the way for the

empirical analysis that will be developed in Chapters III and V, where it will be

shown that, despite its more sophisticated mindset and self-serving goal, in

common with UN statebuilding missions, the EU also tends to technify the

relationship with the target state and dangerously marginalize politics and

reconciliation in its strategic policy-making.

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4.1. Peculiarities of EU-driven statebuilding

International multilateral organizations working on statebuilding projects generate

a paradox of sovereignty: the outside-in promotion of good domestic governance

in failed or failing states takes place while sovereignty is subject to constraints. As

Christophe Solioz has stressed (2007: 87), it is rather peculiar that ‘outside

intervention, which has as its declared objective the establishment of an

autonomous state, is also simultaneously the origin of reforms, with the negative

consequence of marginalising the sovereignty of the state and the responsibility of

the politicians of the designated state’.

Often, international missions enjoy the right to adopt legislative acts, or

they are granted corrective powers. Sometimes, even when these prerogatives

have been officially dismissed and the administrative and legislative functions

have been formally delegated to autochthon elites and institutions, international

offices continue to condition heavily the actions of local governments, even if in

indirectly. However, such constraints on self-governance and the temporary

absence of local ownership in domestic reform process are justifiable. As

Dominik Zaum (2007: 27) points out, ‘international administrations compromise a

fundamental aspect of a political community’s sovereignty by violating its right to

self-governance, but do so with the aim of making it sovereign with regards to the

relations between state and society’.

Criticizing the prolonged intrusiveness of the international community in

BiH, David Chandler (2006: 45) has depicted post-Dayton BiH as a mere

projection of an international agenda rather than ‘a collective political expression

of Bosnian interests – expressing self-government and autonomy’. When the

highly-intrusive statebuilding project was initially launched, the foreign actors

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involved in the early reconstruction of post-war BiH compromised crucial aspects

of what Stephen Krasner (2004: 87) refers to as ‘Westphalian/Vattelian’

sovereignty with a view to fostering a reorganization of sovereign powers among

the domestic political authorities. This reorganization aimed to establish

functional interactions between multi-ethnic institutions, in full accordance with

the consociational institutional design and procedures established by the DPA.

Until the prospect of EU membership was extended to BiH, the OHR

represented the leading civilian agency of an ‘ordinary’ sovereignty-paradox type

administration, which was reinforced with the adoption of the Bonn Powers in

1997. However, a further paradox has resulted from having a post-nation state

organization, the EU, hold the reins of the Bosnian multiethnic experiment.

Paraphrasing Zaum, it is possible to state that, through the enlargement project,

the EU has its own way of enabling weak or unstable states in its neighbourhood

to regain sovereignty in their relations with their respective domestic societies.

Amongst the countries of the Western Balkans, it is in BiH that the peculiarities

of the EU’s member-statebuilding are most evident. While Brussels helps the re-

organization of the state by containing the dispersions and the asymmetries of

sovereignty produced by the DPA and its implementation, it prepares the state to

give up certain sovereign prerogatives when the appropriate time to join the

Union arrives.

The interferences inherent in EU-driven statebuilding cannot be justified

simply with the goal of rehabilitating the Bosnian authorities to the full and

legitimate exercise of their empirical statehood. As the findings in the following

chapters confirm, these interferences can be traced back to the latent conviction

that the various internal fractures and wounds of BiH will be healed only when

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Bosnian sovereignty is diluted in the greater EU institutional arrangement. For

this reason, it can be argued that the ‘ethics’ underpinning the EU’s member-

statebuilding is different from the one identified by the sovereignty paradox

literature for ‘ordinary’ statebuilding projects.

Opening a window on policy analysis, it can be stressed that strategic

policy-making in Brussels is strongly influenced by the objective of integration

and the ideals related to it. In other words, the idea that Europe is indeed a

reconciliation process in itself – which is not contested here – induces EU policy-

makers to focus on the aim of integration and marginalize the means, which have

not been properly adapted to the various different realities that the EU

enlargement project encounters. A message that has characterized the evolution of

European integration process since the very beginning is that the supranational

construction that gravitates around the Brussels-based institutions ultimately

represents an innovative way of relating the citizenry with the institutions

governing the res publica.

The European project was designed since its inception as an evolving

architecture that should be adjusted to transcend national ‘particularisms’ and

other sources of unconstructive confrontation among people. Commenting on the

dichotomy between nation states and supranational institutions in the aftermath of

the entry into force of the treaties establishing the European Coal and Steel

Community, one of the founding fathers of the European Communities

commented that ‘Europe will exist, but nothing will be lost of all that gave glory

and happiness to every nation. It is indeed in a wider society, in a more powerful

harmony, that the human being can affirm himself and determine the extent of his

intellect’ (De Gasperi 1953: my translation).

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Needless to say, at the beginning of the European project, in the late 1940s

and early 1950s, integration was evolved through symmetric concessions by the

states involved, which were all consolidated sovereign units and equal partners.

The original supranational ambition stemmed from a negotiation process between

nation states that symmetrically converged towards a set of common goals. The

initial European construction came into being via a series of symmetric and

converging moves. The picture today is different. The set of core institutions

representing the Union have been consolidated and Brussels projects its influence

and operational capabilities abroad through via both political decisions of the

European Council and the technical assistance and capacity-building initiatives of

the Commission directly in the target states in-the-making.

This exercise is more intense in countries that have been offered the

concrete prospect of membership, which at the moment are all the Western

Balkans countries and Turkey. However, similar influence and efforts are carried

out in those countries that come under the umbrella of the European

Neighborhood Policy (ENP), which was formally established in 2004 (European

Commission 2004a). This initiative involves all the countries on the southern

shore of the Mediterranean basin, the Caucasus region, as well as Belarus,

Moldova, and Ukraine.26 The initiatives and, more generally, the degree of

interference of the EU in these countries differ from case to case, and its intensity

tends to vary depending on the degree of governing capacities of the domestic

authorities.

Going back to the enlargement process, it can be argued that Brussels

presents itself as a very peculiar state-builder. In the parallel implementation of its

statebuilding and enlargement agenda, the EU imitates a neo-medieval empire

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training peripheral units towards full membership, since it considers inclusion and

participation in its formal and informal networks as definitive indicators of

rehabilitation. Among those who support this neo-medievalist understanding of

the EU, Jan Zielonka (2006: 170, 43) defines the Union as ‘a civilian power

enlarging its territory by consent and diplomatic bargaining’, which however – no

different to past empires – is ‘more preoccupied with maintaining its internal

cohesion than in solving external problems on the ground’.

A further consideration completes the picture. The peculiarities of the EU-

driven statebuilding are neither just theoretical, nor are they confined to the

sphere of normative principles and policy-makers strategic intensions. The

‘paradox within the paradox’ cannot be explained simply by trying to reconstruct

how Brussels envisages stability for the Bosnian state. EU-driven statebuilding

differs profoundly also in the methodology and the choices made for field

initiatives if compared with ‘ordinary’ UN-led operations of the same type. A

practitioner serving in Sarajevo and previously involved in the work of the ICISS,

has summarized this idea as follows:

If the operations currently in place in BiH were still of an

internationally-driven statebuilding the trajectory of sovereignty

would look very differently. International statebuilding means: we

put in place institutions; we stimulate a shift of the political culture

in order to go beyond the rhetoric of wartimes – which unfortunately

is still far than accomplished in today’s BiH; we implement

structured confidence-building measures at all levels. This should

help to re-establish a sovereign society and state. Only then, at an

appropriate point, when reconciliation is achieved at all levels, this

society can autonomously start to debate on what strategic and

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political decisions/directions should be taken, both domestically and

internationally.27

Brussels has offered BiH (and the rest of the Western Balkans) a political

model that is notably different from that thus far experienced in the region.

Following the disintegration of Yugoslavia, the Western Balkans was

characterized by two ideas that were inevitably sources of political tension. The

first is that boundaries matter; the second is that ethnicity also matters. These two

predominant perceptions of politics are interconnected. The history of the region

over the past century demonstrates that ethno-religious majorities constantly try to

consolidate their preeminence, while minorities try to counter by endeavoring to

push borders to that point where they become a majority. The war in BiH was the

most tragic consequence in the last two decades of these two dynamics. The

recent experience of Kosovo is also emblematic, not only for the path that led

Pristina to full independence from Belgrade, but also for the subsequent attempts

by the Serb population living north of the Ibar river to return to Serbia and avoid

‘the minority complex’.

In contrast, the European integration model is based on three ideal

political principles that are in complete opposition with the feelings, dynamics,

and history of the former Yugoslavia. The project pursued by the EU through its

efforts at supranational integration is instead grounded in reconciliation, dilution

of boundaries of any kind, and the persistent promotion of a spirit of compromise.

This last aspect actually permeates the EU’s institutional life at all levels and in

all contexts, whether technical or political. To better understand how these three

principles are implemented by the EU, reference can be made to several strategic

processes and initiatives elaborated by Brussels for its near abroad. In the specific

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case of BiH, one interesting example is the attempt to consolidate economic

regions that transcend ethnic boundaries within the state.

The EU funded a project called European Regional Economic

Development in Bosnia and Herzegovina (EURED), which contributed to the

creation of five economic regions cutting across the IEBL and all other internal

administrative boundaries above the municipal level. A first trance of financial aid

for the establishment of these five spaces of economic integration was provided

via the EURED I framework, which was launched in April 2003 and was

concluded in October 2005. A second financial package, labelled EURED II, was

inaugurated in December 2005 and concluded in August 2007.

The five economic regions promoted by the EU with this initiative are the

following: the Northwest Economic Region (ARDA),28 the Northeast Economic

Region (NERDA),29 the Herzegovina Economic Region (REDAH),30 the Central

B&H Economic Region (REZ),31 and the Sarajevo Macro Region (SERDA).32

Integration in each of these five geographic spaces is supervised by a Regional

Development Agency (RDA). The five RDAs are responsible for the coordination

and implementation of specific projects (for the most part financed through EU

funding) and, more broadly, they are tasked with the promotion of regional

development strategies. The main ‘partner’ for the five RDAs at central state level

is the national Foreign Investment Promotion Agency (FIPA).

The emphasis on the elimination of ethnic boundaries through economic

integration appears to show the EU attempting to replicate at micro level, in BiH,

the technical economic integration process experienced by EU member states in

the early stages of their cooperation. Observers have confirmed that the

reconfiguration of BiH beyond the two-entity model could indeed be based on the

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project of transforming the five economic regions established through EURED

into five multiethnic administrative shells that would replace the current middle

level of governance and possibly also allow the elimination of the complex and

financially unsustainable cantonal system of the FBiH (Metiljevic 2005).

4.2. The EU prospect of membership as a benevolent imperial

projection

Thanks to the initial strength of the EU prospect of membership, BiH was

launched on a peculiar rehabilitation track: some of the steps of the ‘ideal’ post-

conflict rehabilitation track as outlined in the previous quotation by an ICISS

member were not achieved and, perhaps, not tackled with direct policies (Gori

2007). Following the experiments of the past few years, two main questions need

to be addressed. Firstly, can the EU prospect of membership, a merely indirect

perspective, truly create incentives for fluid political cooperation amongst the

elites representing the three ethno-religious factions previously at war? Secondly,

does the EU perspective reflect strategic imperial designs or has it merely

developed as a consequence of a ‘cold and distancing’ technocratism?

Looking at Kosovo, Macedonia, Bosnia, and the degree of involvement of

the EU in the stabilization processes of these complex realities, Sergio Romano

(2003: 23), an Italian diplomat and historian, talked about the emergence of new

‘European protectorates’. The word protectorate has a negative connotation;

however, in contemporary international relations it can also take on other

meanings. The term protectorate can be used to describe those contexts in which

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international institutions (and/or coalitions of states working under an

international mandate) take over responsibilities and financial burdens of unstable

states, with the aim of containing potential security threats – regionally or even

globally.

This a positive understanding of the term protectorate can be applied to the

current EU commitment to the troubled countries of the Western Balkans, even

though some observers continue to criticize the EU for engaging in ‘a new

colonialism’. For instance, when the handover from NATO to the EU in BiH took

place, several critics questioned whether Operation Althea would substantially

contribute to the improvement of security in BiH. By deploying a European force

in BiH, skeptics in the international press claimed that the EU was trying to affirm

itself as an exclusive regional player: the European troops (EUFOR) would have

indeed ‘less to do with Bosnia’s needs than the EU’s ambitions as a military

power’ (Wood 2004).

4.2.1. Empire ‘through’ or ‘on’ states

Can the label of imperialism, often attached to both statebuilding and the EU

enlargement, be dismissed completely? The answer is at best uncertain. Some

scholars claim that these two processes are easily distinguished from a supposed

post-modern imperialism. While the rationale underpinning imperialist logic used

to develop along pre-defined ideological tracks, statebuilding and European

integration appears to be ‘organized along purely technocratic, administrative

lines’ (Bickerton 2005a: 1). In contrast with this view, other scholars depict the

EU precisely as a neo-medieval realm: Brussels as the capital of a benevolent

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empire with fuzzy borders, exporting rules and procedures in its neighborhood

(Zielonka 2006), establishing protectorates (e.g. BiH and Kosovo), and sometimes

even pushing forms of constitutional reorganization that may suit European

idealizations but that in the end may result in complex institutional ‘straitjackets’

(Malic 2007).

In this regard, it might be interesting to replicate in the EU context, an

exercise carried out on the US by Hendrik Spruyt (2008), who applied the

definition of empire as ‘effective control, formal or informal, of a subordinated

society by an imperial society’ – a definition provided by Michael Doyle (1996:

30-47) – to the current network of overseas relations established by US

diplomacy. Spruyt summarizes the main features of Doyle’s definition using four

attributes. Center/periphery relations are imperial in nature when: they are based

on systematic interactions; they are based on asymmetric power; they are directly

correlated to the degree of cohesion in the centre; and they are sustained by the

presence of groups at the centre that have a stake in the maintenance of the

imperial projection towards the periphery. Further to these four aspects, Spruyt

(2008: 293) complements the work of Doyle by adding two additional attributes.

On the one hand, empires are characterized by heterogeneous relations between

the center and the different units at the periphery. On the other hand, the

establishment of unequal relations must be based on a qualitative justification of

why the centre is superior to the periphery.

Using this premise, Spruyt concludes that, while employing imperial

practices worldwide, US foreign policy lacks the structural features that are

typical of formal empires. Specifically, these features coincide with:

institutionalization of hierarchical relations between the periphery and the center,

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the perspective that opposite poles in the empire can develop their relations up to

the point of becoming ‘an integrated whole’ (Spruyt 2008: 298). In other words,

statebuilding projects promoted by US policy-makers represent attempts to

consolidate sovereign units and increase global power through them rather than

on them (Spruyt 2008: 291).

This can be compared with the key characteristics of the EU imperial

member-statebuilding activities. First of all, there is a quantitative difference

between the ambitions pursued by the EU and those pursued by the US. While the

latter seeks a network to further the consolidation of influence on a global scale,

the former is still mainly focused on the completion of a regional project. If the

enlargement process is a way to consolidate the borders of the empire, the ENP

has resulted in policies and instruments through which Brussels tries to establish a

security-belt right beyond its fuzzy boundaries. Secondly, the EU expansion

project is qualitatively different because it is a way of consolidating control by

containing sovereignty. The main logic of the EU member-statebuilding process

is to exercise control from the center to the periphery through imposing

limitations ‘on’ the sovereign state. Quite on the contrary, US statebuilding

initiatives place the emphasis on restoration of sovereignty according to a

classical understanding of the term, and demonstrate that Washington seeks to

increase power through the establishment of stable friendly but independent

governments.

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4.2.2. The EU perspective: successes and failures

Through the power of the prospect of membership, the imperial stabilizing

influence of the EU in the Balkans continues to function. The prospect of

membership has already revealed some of its stabilizing effects in Croatia, is at

present being critically tested in BiH, and is expected to be the key element of the

overall stabilization of the Western Balkan region. This indirect statebuilding tool

can be situated mid-way between traditional externally-driven statebuilding and

the formal procedures typical of the EU enlargement process based on the

Copenhagen criteria. It is worth stressing that this concept is relatively new in the

scholarly literature: it was practitioners who first coined and developed it.

Amongst others, the former Head of the OSCE Mission in what was then

Serbia and Montenegro provided a clear description of the Euro-Atlantic

prospective shared among key Western Balkans states (Massari 2005). Giuliano

Amato, head of the International Commission on the Balkans, has stressed that the

idea of becoming an EU member state is a widespread aspiration throughout the

Western Balkans, and that this ‘dream is by far [the] most powerful force driving

positive change’ (Amato 2005). Amongst the first scholars to pioneer the study of

the relatively uncharted area of the European prospect of membership and its

indirect appeal, David Chandler has argued that this tool increased the regulatory

power of the EU; however, he has remarked that this new mechanism of indirect

stabilization cannot alone solve the delicate problem of accountability:

The long process of negotiating European membership, through

'Partnership' agreements and the Stability and Association process, is

the form international statebuilding takes; this process distances the

potential accession states at the same time as giving the EU greater

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regulatory authority. The decision-making power lies with Brussels

but the accountability rests with the governments of the Balkan

states (Chandler 2005b: 5).

Unfortunately, the issue of accountability is not the only problem

associated with the process of harmonization between the Western Balkans and

the EU. If we really want to evaluate the EU prospect of membership as a

stabilization tool, the Bosnian test case is quite revealing. On the one hand, it

cannot be denied that the prospect of European integration has so far successfully

reined in the centripetal forces characterizing the Bosnian political environment

and prevented them from producing critical institutional shocks. Bosnian political

elites are divided on all of the most sensitive issues, but the European integration

project is the one area on which they can all agree. A political advisor who served

at office of the Bosnian Chief Negotiator for the EU SAA declared:

Everybody in Bosnia considers the EU as ‘the’ anchor. Currently,

the idea of working for the EU accession is the only issue on which

all parties agree. Elites unanimously share the idea that our place is

in the EU. Personally, I see Europeanization as a key component if

not the sole engine of this complex statebuilding and normalization

process.33

On the other hand, Bosnian political life over the past three to four years

has been characterized by a series of worrying signs, two of which are worth

mentioning in some detail. Firstly, the political rhetoric – not only in the

proximity of elections – sometimes resembles the type of confrontation that often

precedes wars: the fear of reverting to the pre-war time atmosphere is recurrent

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among average Bosnian citizens. Secondly, another source of preoccupation is

that key parties have not agreed on a concrete plan for constitutional reform, nor

have they pursued any constitutional consolidation of the changes that were put in

place under the influence of the international community in the implementation

process of the DPA.

As Chapter III will show in more detail, this last point is particularly

significant: the structural and institutional changes that have been put in place so

far (mostly through the direct imposition or in some case through soft

interferences of the OHR) have not being given any kind of constitutional

formalization. This is a clear sign that the EU prospect of membership cannot

substantially stimulate a domestic constitutional debate if it is not backed up by a

constant and active mediation that aims to, so to speak, ‘round off the angles’

between the various extremist lines taken by the representatives of the three main

ethno-religious groups.

In the words of a scholar from the University of Sarajevo, ‘if the EU

technocratic approach was the right way to produce positive change on the

Bosnian political environment, then constitutional consolidation would have

already taken place long time ago’.34 Perhaps this statement overlooks the fact

that Bosnian politicians also have a degree of responsibility for this failure.

However, it would also be an exaggeration to state that the EU has always acted

as the ‘anchor for the process of inter-ethnic and inter-state reconciliation’, as

Dimitar Bechev and Svetlozar Andreev (2005: 4) have claimed. As Chapter IV

will demonstrate, the Bosnian police reform process represents a specific area

where the EU has not been able to handle the frictions between its own

technocratism and rigid schemes on the one hand, and political rhetoric and inter-

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ethnic confrontation on the ground on the other. As clarified on the OHR website

when the process was officially launched:

The European Union has made police restructuring one of the

priority criteria for the start of negotiations on a BiH Stabilisation

and Association Agreement … [T]his reform must: place exclusive

competence for police legislation and budget at the State level; recast

regional police areas on the basis of functional police criteria; and,

help protect the police from improper political interference (OHR

2005c).

As will be demonstrated in detail later, apart from a few technical

adjustments adopted by the Bosnian legislator, at present, there is still no

agreement among the main Bosnian political parties on the core aspects of the

reform package. It should be noted, however, that in 2006 an agreement was

almost reached. The failure occurred when the Bosniak leader Haris Silajdžić and

the RS Prime Minister Milorad Dodik transformed police restructuring into a

battlefield for their personal sovereignty struggle. The EU did not contribute to an

easing of confrontation. Brussels tried to obfuscate the more ideological purposes

of the reform and instead pushed the idea that police restructuring was a necessary

step in the adoption of European standards. Dodik strenuously defended the

integrity of the RS Police as a sovereign prerogative of his Entity that could not

be surrendered.

It is worth noting that the fight for the integrity of the RS entity status was

not a political battle pursued merely by Dodik – who in his capacity as RS

premier has also repeatedly threatened to hold a referendum on secession. In

Banja Luka, the RS has priority over BiH across the entire political spectrum. In

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the political programs of many parties it is possible to find formulas like ‘the X

party is committed to the integration of RS and BiH in the European Union’.

Formulas that are very similar to this one are encompassed in the program and the

rhetoric of the RS premier’s party, the Alliance of Independent Social Democrats

(SNSD), but are made explicit also by other political groups. For instance, the

Party of Democratic Progress (PDP), founded by and still run under the guidance

of Dragan Ivanić, has identified the motto ‘Europe, the house of the future’ as first

pillar of its new political strategy. Commenting on this choice, a member of the

party’s executive board admitted: ‘The first point of our new strategy makes

explicit what is actually clear since 1999, which was the beginning of our activity.

We defined ourselves as an EU-party, whose main objective is the integration of

RS and BiH into European networks and the EU’.35

Interestingly enough, in 2006 the RS president Milan Jelić used the

celebrations for the statehood day as an opportunity to launch a polemic against

the international community. Jelić argued that the ‘non-existent Bosnian statehood

day’ represented a breach of the sovereignty of BiH, ‘a state of two equal and

integral entities’ (Slobodanka 2006: emphasis added). Since this national

recurrence has formally been introduced only one Entity (obviously the FBiH)

celebrates it. The situation is particularly pronounced in Sarajevo, where every

November 25 ministries and other institutions of the central government are only

half empty. Bosnian-Serb civil servants refuse to take a day off from work, while

all Bosniaks and most Croats celebrate the national day. The differences in

approach to this celebration are evident also in the streets of Sarajevo. While

nothing changes in the Serb Eastern part of town, almost every activity in the

Bosniak-dominated historical centre of the city, Baščaršija, shuts down.

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Interestingly, the city centre of Baščaršija is decorated with both the new and the

old Bosnian state flags as well as, sporadically, with the symbols of the Bosniak-

dominated Armja that defended the city during the siege.36

4.3. The OHR-EUSR transition: from the Venice Commission

assessment to the ‘five-plus-two’ test (2005-2009)

The plans for the closure of the OHR have for some time been on the agenda of

the PIC. To some extent, the end of the OHR era and the creation of a reinforced

EUSR Office represent a key turning point in the full installation of the EU-driven

statebuilding in BiH. The issue erupted on the international agenda in March

2005, following the release of a detailed report by the ‘European Commission for

Democracy through Law’ – a working group established within the CoE

framework and also known as the ‘Venice Commission’. Providing a detailed

‘opinion on the constitutional situation in Bosnia and Herzegovina and the powers

of the High Representative’, the Venice Commission (2005: 20-25) examined the

impact of the HR on both Bosnian political and institutional life. Evaluating the

compatibility of this institution and its prerogatives with CoE standards in the

field of democracy, the Venice Commission concluded its work with some

detailed policy prescriptions that were submitted for the attention of the PIC.

An examination of this document reveals a clear recommendation by the

Venice Commission in favor of a substantial reorganization of the international

community presence in BiH. In a straightforward assessment, the report advocates

in particular for the elimination of the regime determined by the Bonn Powers, as

well as for the subsequent transformation of the double-hatted HR/EUSR into a

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less intrusive and impartial mediator, responsible only to European institutions,

and therefore fully committed to promoting the consolidation of the European

perspective of BiH. Moreover, the Venice Commission has argued in favor of a

further rationalization of the same EU presence in BiH: with the political input

from the EUSR offices and the technical activities of the Commission Delegation

to be headed by the same person. The proposal elaborated by the five

rapporteurs37 on the role of the EUSR proceeds as follows:

While BiH may still need more guidance from the international

community, this could be provided by more subtle means. At

present, the High Representative is at the same time the EU Special

Representative. If he were to retain only the role of EU Special

Representative comparable to the practice in “the former Yugoslav

Republic of Macedonia”, this would allow the transformation of the

role of the High Representative from a decision-maker into that of a

mediator. The interest of the people of BiH in European integration

should ensure the effectiveness of this role (§100).

It is interesting to note that the experts from the Venice Commission made

specific reference to the experience of the EU’s representative to FYROM. The

political envoy sent from Brussels to Skopje in October 2005 was also installed as

Head of the Commission Delegation in FYROM. An argument in favor of this

choice can be made. As recent history confirms, the process of European

integration has mostly developed along the same lines: the efforts for the socio-

economic harmonization of the European space have been accompanied by

attempts to generate political convergence, consolidate common values, and

standardize good-governance practices. Hence, integration has taken place

through supranational institutional developments, but also through a redefinition

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of the institutional and legal structures inherent to the states that are taking part to

the process. In view of this experience, it can be argued that the most substantial

and tangible added value of EU-driven statebuilding has been precisely this

unique link between political stabilization on the one hand, and promotion of

welfare and multiplication of economic opportunities on the other. The experience

in FYROM has shown that a EUSR that channels political inputs, while at the

same time coordinating the technical efforts pursued by the Commission, can

better manage the EU prospect of membership, intended in its broadest sense.

Moving from policy analysis back to the specific critique launched in 2005

by the Venice Commission on the prolonged presence of the HR in BiH, it should

be noted that the argument for the elimination of the Bonn Powers was built on

two sets of considerations, which converged towards one basic idea: the

prerogatives that were granted by the PIC to the HR back in 1997 could then be

justified by the existence of a state of emergency, ‘emergency powers have

however to cease together with the emergency originally justifying their use’

(§86). The excessive activism of the HR was examined both as a source of

legislation by decree and as an instrument of censorship in the political and

administrative life of the country, in view of his authority to dismiss officials that,

in his eyes, were guilty of creating obstacles to the peace implementation process.

The extended use of the Bonn Powers beyond a clear state of emergency

have been recognized as being in breach of the very principle of popular

sovereignty, which ‘requires that legislation is adopted by a body elected by the

people’ (§88). Apart from the domestic dimension of democratic responsibility of

the government, the report has also highlighted the international aspects related to

the participation by BiH in the human rights regime established by the CoE: ‘as a

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member state … BiH is responsible for the commitments with respect to the

Organisation and this responsibility has to be fulfilled by the country and not by

the international community’ (§88).

At the centre of this complex picture of responsibilities and democratic

dynamics, the OHR has been depicted as an element of division, especially with

regard to its legislative activism. As pointed out by the Venice Commission,

politically, the chain of responsibility of the HR goes directly to the PIC and

cannot in any way be referred to the Bosnian population, ‘although the personal

commitment of the present High Representative and his predecessors to the well-

being of the people of BiH is beyond doubt’ (§89). The situation does not become

more ‘democratic’ if analyzed in a purely juridical way. The Bosnian

Constitutional Court ‘exercises judicial control of the constitutionality of the

content of legislation enacted by the High Representative in the same way as for

legislation adopted by the Parliamentary Assembly of BiH’ (§89). However, the

existence of such control ex post does not counter balance the fact that the right to

adopt binding decisions is purely at the discretion of the HR: the Bosnian

Constitutional Court indeed ‘does not examine whether there was enough

justification for the High Representative to enact the legislation instead of leaving

it to the democratically elected organs of BiH’ (§89).

The discretionary right to remove public officials (civil servants or

democratically elected politicians that they might be) has also been strongly

criticized by the Venice Commission. The report has looked at this praxis starting

from a social consideration: ‘the termination of the employment of a public

official is a serious interference with the rights of the person concerned’ (§94,

emphasis added). Based on this evaluation, the Venice Commission has also

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warned that, ‘in order to meet democratic standards, it should follow a fair

hearing, be based on serious grounds with sufficient proof and the possibility of a

legal appeal’ (§94).

Needless to say, in examining the direct interference in the democratic

relationship between the constituent people and governing elites, the actions

initiated by the HR for the removal of elected representatives have been

characterized by an additional element of concern if compared with cases where

the career of unelected civil servants were at stake. In the cases involving

politicians who have been democratically elected, it is not only the life of the

removed officials (and maybe that of his family) that is directly affected by the

decisions of the international envoy, ‘the rights of their voters are also concerned

and particularly serious justification for such interference is required’ (§89). The

report concludes with a broader negative assessment on the impact of the HR on

the consolidation of the Bosnian state as a fully democratic system, which is

worth reporting extensively:

The High Representative is not an independent judge and he has no

democratic legitimacy deriving from the people of BiH. He pursues a

political agenda, agreed by the international community … As a

matter of principle, it seems unacceptable that decisions directly

affecting the rights of individuals taken by a political body are not

subject to a fair hearing or at least the minimum of due process and

scrutiny by an independent court (§96). [The Bonn Powers do] not

correspond to democratic principles when exercised without due

process and the possibility of judicial control. Its justification

becomes more questionable over time (§100).

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4.3.1. The call for ownership and the issue of the Bonn Powers heritage

This strong and clearly articulated call for democracy launched by the Venice

Commission served as a catalyst to rethink the structure of the international

presence in BiH and promote a transfer of responsibilities from the OHR to

domestic authorities. In the words of Olli Rehn, the presence of an institution

equipped with the Bonn Powers represents a serious limitation on the country’s

‘ownership for decision-making and reform’; therefore – continued the EU

Enlargement Commissioner in his speech at the UN in Geneva – the ‘time has

now come for Bosnia and Herzegovina to assume more responsibility for its own

future’ (Rehn 2005).

Published only a few months from the 2006 general elections, the call

from the Venice Commission and the plea made by Olli Rehn were temporarily

left in stand-by. However, important political signals were given by the PIC-SB.

In June 2006 the PIC-SB Political Directors adopted a communiqué titled:

‘Towards Ownership: From Peace Implementation to Euro-Atlantic Integration’,

which clarified that the process for the closure of the OHR had to start

immediately, in order to be completed within at most one year and therefore allow

BiH ‘to take full responsibility for its own affairs’ (PIC-SB 2006c). Moreover, the

PIC-SB Political Directors formally welcomed the commitment made by the EU

to the establishment of a reinforced EUSR Office (PIC-SB 2006b), and they

encouraged the politicians that were about to run at the general elections to

engage, once elected, in constitutional reform as ‘a top priority in order to build a

sustainable democracy and to make governmental and parliamentary institutions

efficient and effective’ (PIC-SB 2006b).

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Following the October 2006 general elections, witnessing the defeat of the

old nationalist parties and the emergence of what back then appeared as relatively

new and more moderate forces in the country, the main body supervising the

implementation of the DPA in BiH began to consider more seriously the

possibility of bringing to an end the experience of the OHR by June 2007 and the

related abolition of the Bonn Powers. Already at the last meeting in 2006, only of

a few weeks after the October general elections, the PIC-SB adopted with

unanimous consensus a communiqué that represented an explicit exhortation to

the recently elected government and Parliament: ‘Time to Meet the Ownership

Challenge’ (PIC-SB 2006a). This document was the outcome of a two-day retreat

of the PIC-SB Political Directors in Brussels, which was also attended by some

representatives from the newly installed Bosnian Parliament and government,

including the Prime Minister.

The document put clear emphasis on the responsibilities of Bosnian elites

for the realization of the Euroatlantic future of the country. The PIC-SB Political

directors urged local elites ‘to live up to their responsibilities to the people of

Bosnia and Herzegovina ... and to return to the reform agenda in line with the

European Partnership priorities. In their actions and through their political

activities, they must keep in mind the need to make Bosnia and Herzegovina a

factor of stability in the region’ (PIC-SB 2006a).

However, an interesting note of caution was introduced in the conclusions

of the document. PIC-SB Political Directors welcomed ‘Spain’s willingness to

take on the role of OHR’s successor in interest and invited Spain to join the PIC

Steering Board as an observer’ (PIC-SB 2006a). This formula was overlooked by

international observers and scholars, but it reveals that while preparing the way

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for the closure of the OHR, the international community was at the same time

debating possible legal mechanisms to resume rapidly the Bonn Powers if

required. What can be referred to as ‘the issue of the Bonn Powers heritage’,38 is

confirmation that, probably from within the same OHR, international legal experts

identified Spain as a reasonable candidate to take on responsibility for the Bonn

Powers using a legal fiction. The government in Madrid could indeed have the

right to assume at any time the exercise of those powers in the event of new

emergencies arising after the formal closure of the OHR.

The interpretation of this signal as a cautelative legal measure was

confirmed by the lack of concrete progress in the OHR-EUSR transition. Despite

a general consensus in the PIC-SB on the need to implement substantial changes

to the international presence in BiH, the closure of the OHR and the installation of

a reinforced EUSR (not equipped with any kind of authority that could resemble

the Bonn Powers) remained practically frozen for over a year. The reluctance of

some members of the PIC-SB (in particular the US and the UK) to push for more

concrete moves in this direction stemmed from the political crisis determined by

the difficult EU-sponsored police reform process and the related delay in the

finalization of the SAA between BiH and the EU, which eventually carried in

December 2007.

4.3.2. The ‘5+2’ test

At the first meeting of the PIC-SB after the initialing of the SAA, five objectives

and two conditions were identified as a final mandatory test for Bosnian political

elites prior to giving the green light for the OHR closure. At the end of a two-day

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meeting in Brussels, the PIC-SB Political Directors carefully remarked that local

‘politicians must end the practice of threatening unilateral changes to the

constitutional structure of the country’ (PIC-SB 2008). Moreover, the following

objectives were listed: acceptable and sustainable resolution of the issue of

apportionment of property between state and other levels of government;

acceptable and sustainable resolution of defense property issues; completion of

the Brčko Final Award; fiscal sustainability (promoted through an Agreement on

a Permanent ITA co-efficient methodology and establishment of a National Fiscal

Council); entrenchment of the rule of law (demonstrated through adoption of

National War Crimes Strategy, passage of Law on Aliens and Asylum, and

adoption of National Justice Sector Reform Strategy). This list of five objectives

was complemented with two further conditions: the signing of the SAA and a

positive assessment of the situation in BiH by the PIC-SB based on full

compliance with the Dayton Peace Agreement (PIC-SB 2008). As has been also

stressed by international policy analysts (ICG 2009b: 16), this last political

condition undoubtedly represented a sort of safety clause, which has enabled the

PIC-SB to exercise a degree of flexibility prior to formalizing the OHR closure on

the basis of purely technical developments.

In their joint report on the status and perspectives of the international

presence in BiH – which was circulated amongst relevant governmental and non-

governmental actors on 31 October 2008 with the title ‘Bosnia and Herzegovina:

the International Mission at a Turning Point’ – Javier Solana and Olli Rehn

provided a convincing argument for the need to reach agreement on the closure of

the OHR by the end of 2009. According to the assessment of the High

representative for CFSP and the EU Enlargement Commissioner, ‘if the OHR is

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still around in 2010, then the High Representative, his role, and that of the IC

presence could once again become central campaign themes in the 2010 general

elections’ (as quoted in ICG 2009b: 15).

At the moment of writing, however, the transition from the OHR to a

reinforced EUSR Office has not definitely started. Therefore, it is highly probable

that the prophecy made by Javier Solana and Olli Rehn will actually be fulfilled.

As general elections are now only a few months away, it seems unlikely that the

PIC will be able to reach a consensus and finally launch the transition process.

The impasse is also connected to the difficulties in planning for a reinforced

EUSR presence. The EU Council is exploring possible ways to associate three

non-European countries – the US, Russia, and Turkey – with the EUSR Offices. If

the presence of the latter has received an obvious veto by Greece and Cyprus, also

the possible presence of the US has resulted in a lively debate in Brussels.

In concluding this section, it is worth referring to a recent analysis made

by Florian Bieber (2009), who attentively emphasized both the weaknesses of the

EU strategies for BiH and labeled as completely ‘out of date’ the presence and

role of the OHR:

International, and first and foremost EU, policy in Bosnia has been

inconsistent and counterproductive. The High Representative, OHR,

as an institution has outlived its usefulness. However, instead of

leaving the scene with a bang, the OHR has been reduced to a

whimper. Marginalized, excluded from key decisions, without the

backing of key states in the Peace Implementation Council and at

times the EU, the institution has been allowed to become an

institution with great powers, high expectations and little ability to

make use of them.

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5. Conclusions

BiH is s complex multiethnic polity where socio-political reconciliation is still

lacking and the three main ethno-religious constituent people are still fed a

nationalist and inflammatory rhetoric. The following two chapters will explain

extensively the EU approach to the reorganization of the Bosnian state and the

normative principles informing such a complex undertaking. There inevitably be

criticism of certain attitudes and strategic choices made by the EU for the

stabilization of its most delicate potential candidate member. However, the aim of

this thesis is neither to produce a sterile critique of the EU’s approach to the

Bosnian stabilization process, nor to indirectly imply that the strategies developed

in Brussels and tested in BiH, in the very long run, are destined to result in

inevitable failure.

As has been shown, this thesis sheds light on two grounds of analysis. On

the one hand, it examines the normative understanding of sovereignty and post-

conflict stabilization underpinning EU policies; on the other hand, it reconstructs

the actual modus operandi of the EU and how European policy-makers interact

with local elites. The point of contact between these two spheres of inquiry is the

issue of responsibility. The following two empirical chapters will thus serve two

purposes: firstly, to measure the distance between the ideal of sharing

responsibilities and the systematic disregard in the actual practice of multilateral

cooperation on a statebuilding project; secondly, to understand why, at the

moment of writing, the Bosnian statebuilding process seems to be at a standstill.

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To be precise, there is substantial evidence that most of the conditions exist to

declare BiH a striking case of ‘failed international statebuilding’.

Based on the analysis of the Bosnian context presented above, the

following pages approach symmetrical aspects of what can be metaphorically

referred to as the ‘responsibility coin’ of post-conflict reconstruction. Chapter III

highlights the main characteristics of what will be symbolically referred to as the

EU’s ‘hands-up’ approach to political reconciliation and constitution-making in

BiH. Analyzing the problems related to a structured reorganization of the Bosnian

constitutional architecture, and the particular reluctance of the EU to invest in

such a delicate project, reveals the predominance in Brussels of a risk-avoidance

mentality. Interviews with international personnel in both Brussels and Sarajevo

and an analysis of official documents demonstrate the general tendency of EU

policy-makers to technify the relationship with the target state – exercising what

resembles a neo-medieval imperial projection – while they encourage it on the

path to Euro-Atlantic integration.

The EU’s reluctance to launch a proper debate on constitutional reform

and implement policies aimed specifically targeted at resolving the domestic

multilevel sovereignty struggle confirms that Brussels is still conditioned by the

residual statebuilding influence exercised by Washington. An analysis of the timid

approach to constitutional change, however, demonstrates only one aspect of the

‘troubled’ relationship that Brussels has developed vis-à-vis its responsibilities in

the neighboring Western Balkans region and, in particular, in BiH. The other side

of the ‘responsibility coin’ will be investigated in Chapter V, by examining the

genesis and developments of police reform in BiH.

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For four years (2004-2008) the challenge of reorganizing the Bosnian

police was ‘the’ EU’s top priority. The way in which this reform was launched,

sustained, and transformed into the key condition for the signing of the SAA with

BiH, but then subsequently dropped from the negotiation table reflects a tendency,

typical of multilateral institutions operating in crisis areas, to create a fictional ‘no

mistake policy’. This expression is typically employed by practitioners when

referring to their systematic denial of objective miscalculations, mistaken politico-

diplomatic and reform strategies.

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(Chapter III)

The Buck Stops Where? Responsibilities in the

Bosnian Constitutional Reform Process

1. Introduction

More than six years have passed since the (then 15) EU member states gathered in

Thessaloniki with the countries of SEE and agreed that ‘the future of the Balkans

is within the EU’ (European Council 2003). Since then, BiH has had four

different HR/EUSRs (the British Paddy Ashdown, the German Christian

Schwarz-Schilling, the Slovak Miroslav Lajčàk, and the Austrian Valentin Inzko,

who is currently in office) held a general election, signed the SAA with the EU

following a year of serious political crisis, experienced renewed ethnic tensions,

and faced critical uncertainties.

The SAA was signed in June 2008. By agreeing to proceed with the

signature, Brussels rewarded the elites representing the three ethno-religious

factions formerly at war for their adoption of two technical laws that were

expected to form the basis of a more comprehensive police reform. The

reorganization of the Bosnian police structure was introduced as part of the pre-

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SAA EU conditionality package when Paddy Ashdown became double-hatted

HR/EUSR and, over four years, was assigned ‘absolute priority’ status by EU

policy-makers. In addition to the reform of the police structures, the EU’s pre-

SAA conditionality package required the Bosnian authorities to strengthen ICTY

co-operation, reform public broadcasting, and reorganize the public

administration.

While we can say that there has been some progress in the area of police

reform, it is also true to say that most questions related to the broader

constitutional reform have been left unanswered. Since the signing of the DPA,

there have been several attempts to institutional restructuring, mostly driven by

the international community. However, to date there has been no process of

constitutional consolidation and the problem of a general constitutional reform

has for a long time been neglected by EU policy-makers. As a result, with the

country in the fifteenth year of its troubled post-Dayton history, a definitive

stabilization and reorganization process of the Bosnia’s costly, inefficient,

asymmetric, and fragmented state structures seems far from being achieved. At

time of writing, the Bosnian statebuilding process can be considered as

dangerously stalled. Even if the difficult period that preceded the signing of the

SAA has now come to an end, in concrete terms, it seems that the passage ‘from

Bonn to Brussels’ envisaged four years ago by the International Commission on

the Balkans (ICWB 2005: 37) is far from being completed.

The renewed activism of US diplomacy, following the installation of the

Obama Administration in Washington, has reopened the domestic confrontation

on constitutional reform. However, the prospects for a smooth mediation are still

very limited. Years of inconsistent policies promoted by Washington and Brussels

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contributed to the exacerbation of nationalist rhetoric in the country. The

prolonged lack of transatlantic convergence over the Bosnian stabilization process

has contributed to a crystallization of the conflicting positions that each ethnic

group adopts with regard to the reconfiguration of the central Bosnian state and

reform of the constitution.

Focusing on the attitude of the EU vis-à-vis the Bosnian constitution-

making process, this chapter sheds light on the peculiarities of what I refer to as

EU’s hands-up statebuilding. While keeping its feet in BiH, the strategic thinking

in Brussels reflects something that goes beyond a subtle and indirect denial of

responsibilities: a refusal to interfere that is inconsistent with the massive field

presence and the promises developed on the basis of the Thessaloniki agenda.

Interviewed on what strategies could best facilitate reconciliation and

constitutional reform, EU officials have tended to systematically throw their

hands up, denying that they have any right to interfere and that the EU does not

‘deal’ with sovereignty.

It thus appears that the EU has taken a step back from the implicit Empire

in Denial proposed by David Chandler (2006) towards an explicit – but even

more incoherent – denial of having the right to act, which has allowed Brussels to

avoid undertaking a constructive role in the Bosnian reconciliation project. Based

on extensive interviews and archival research in both Brussels and Sarajevo, this

chapter shows that the attitude of most EU actors towards Bosnian elites is based

on the fiction of a ‘quasi-sacred respect for sovereignty’ that hides a substantial

shortcoming: without the support of the US, the EU proved unable to provide

clear strategic direction to the Bosnian constitution-making process.

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The ambiguity of the hands-up attitude has thus far allowed Brussels to

escape the two crucial dilemmas of statebuilding: bottom-up vs. top-down

approach, and technical presence vs. complex post-war stabilization. Moreover,

this particular stance has allowed EU officials to put on hold two other strategic

issues. Firstly, the hands-up attitude provided Brussels to arrive at a comfortable

modus vivendi with the US and cope with its residual influence on the OHR.

Secondly, by distancing itself from structured constitutional reform and

reconciliation policies, the EU has avoided a difficult internal confrontation on

methods, principles, and issues to be pursued on the ground in BiH.

2. The EU’s ‘hands-up’ statebuilding of BiH

The prolonged stalemate in the constitutional talks is revealing in what it tells us

about the EU’s attitude towards the politico-institutional dynamics of its most

troubled ‘potential candidate member’. According to Joseph Marko (2005: 16) –

former international judge at the Bosnian Constitutional Court – what is evident in

BiH is that ‘[t]oo often, the IC and even the EU does not speak with one voice but

is divided along national lines and spheres of interest’. International divisions,

determined by both national fracture lines and intra-EU institutional tensions,

affect the ability of the EU to exert a constructive influence on the Bosnian

constitutional reform talks. This was particularly striking in the period between

October 2006 and September 2009. During this time span Brussels, lacking the

‘pull’ of Washington, intensified its efforts to technify the relationship with the

Bosnian government and public administration. The US had become trapped in its

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attempts to promote the so-called ‘April package’ for constitutional reform, and

later maintained a certain disengagement from BiH, at least until the new

administration was installed in Washington following the 2008 Presidential

elections.

However the usual limitations of the intra-EU multilateralism and the

inevitable dependence on the evolving attitude of its transatlantic ally are not the

only explanation behind Brussels’ detached approach towards the reform process

of the Dayton constitution and the constitutions of the two entities (FBiH and RS).

Elaborating on a series of interviews with participants and observers of the EU

decision-making processes with regard to BiH,39 it is possible to construct the

ideal picture of a very specific ‘EU’s hands-up statebuilding approach in BiH’

that is a step back from the more promising reconstructions made on the basis of

the sovereignty paradox literature.

Quoting again from Dominik Zaum (2007: 41), the sovereignty paradox is

described in the following terms: ‘the international community compromises one

important norm associated with sovereignty – self-governance – to create the

conditions for full empirical statehood and sovereign authority in the country it

intervenes in, by establishing the capacity of the state to fulfill its international

and domestic obligations’. On the basis of this understanding, all contemporary

statebuilding efforts share the same ethic and ideology. This ‘ethic’ has as its

normative core the idea that sovereignty cannot be intended merely in negative

terms, as an obstacle. Internally, governments have duties and responsibilities

both of facere and non facere towards the population under their jurisdiction.

The inability of local authorities to fulfill fundamental governance

requirements allows the international community to undertake initiatives aimed at

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preventing the population of a failing or failed state from experiencing insecurity

and suffering. In the jargon of the ICISS, this idea can be identified as a

generalized commitment to prevent. When catastrophes and forms of instability

strike, it is the duty of the international community to intervene for the protection

of the affected population. A last, but nevertheless crucial corollary that

completes this logic is the idea of a responsibility to rebuild (ICISS 2001: 19-28,

39-46). The normative idea at the basis of this series of commitments is the

understanding of sovereignty as an internationally shared responsibility.

2.1. The EU’s step back from the Empire in Denial

Some doubts concerning the genuine diffusion of the sovereignty as responsibility

ideal have already been raised in the literature review. But here another question

arises: looking at the prolonged reluctance of the EU to have any role in the

reform process of the Bosnian constitution(s), it seems that we are facing a

particular approach to responsibility. Building on Chandler, we might look at

Brussels and wonder whether we are making a step back from the implicit Empire

in Denial (that according to Chandler can be generalized to the West) towards an

explicit but even more incoherent denial of having the right to act that has thus far

being predominant in the EU member-statebuilding of BiH?

Relocating statebuilding ‘in the broader context of international politics

today’ (2006: 189) Chandler has argued that the centrality of the external

regulation of failing and failed states in the international political debate perfectly

serves the rationale of an Empire in Denial. What he has presented is an

innovative challenge. On the one hand, he has targeted interventionists and

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capacity-building enthusiasts; on the other hand, he has opposed those who

criticize Western governments for merely implementing neo-colonial practices,

even when they operate under the legitimizing umbrella of relevant multilateral

organizations. Building on Zaki Laïdi’s idea that power in the post-ideological era

is just exercised with the sole aim of avoiding responsibility and accountability,

Chandler (2006: 18) has argued that contemporary statebuilding initiatives ‘are

driven less by the desire to extend and enforce Western power than they are by

the desire to deny it’. Developing this critical assessment in more detailed terms,

he has specified that ‘the new international institutional focus on the non-Western

state … is driven by western elites’ desire to avoid political responsibility for their

relationships with large areas of the world’ (Chandler 2006: 30).

The blame attached on the elites from the developed world is as resolute as

it is clear: ‘[r]ather than grasping the opportunities to reshape positively a new

international order in the wake of Cold War division, Western states and

international institutions would appear to be embarrassed by their power and

influence’ (Chandler 2006: 73, emphasis added). Amongst other practices that

compose the toolbox of contemporary statebuilding missions, the outside-in

promotion of democracy and good governance practices in the developing world

is identified as ‘a distancing operation, designed to exercise influence without

assuming direct formal responsibilities of power’ (Chandler 2006: 70).

Moving from the international arena to the specific experience of the EU,

Chandler has focused on the principles informing Brussels-based statebuilders

who work on the stabilization of the Western Balkans and regulate the modalities

of the next EU enlargement. Empire in Denial has offered an articulated (and

sometimes radical) critique of the regulative mechanisms that have been tested in

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failing or failed states. Chandler has distanced himself from previous

contributions in this field for two reasons. The first relates to sovereignty.

Chandler has traced the attempts to redefine sovereignty as an internationally

shared responsibility back to the needs of the Empire in Denial. Generally,

scholars and practitioners have welcomed the sovereignty as responsibility ideal

as a watershed, since it represents a normative innovation that interconnects the

exercise of sovereignty to the fulfillment of an articulated set of responsibilities.

Such a re-conceptualization sheds light on both the international and domestic

accountability of national governments.

While Chandler has not dismissed all the positive implications that could

stem from these elaborations, he has nevertheless warned that this update of the

concept of sovereignty might have been, so to speak, ‘exploited’ to justify

mechanisms and modalities of intervention that keep the Empire in Denial at

work. To his eyes, the new normative understanding of sovereignty has been

presented in a way that constitutes ‘a medium through which non-Western states

and societies become integrated into networks of external regulation’; moreover,

this conceptualization ‘off-load[s] responsibility onto the non-Western state at the

same time as these states increasingly lose their policy-making authority’

(Chandler 2006: 37, 31).

The second point that has allowed Chandler to distance himself from the

recent literature on internationally-driven peace- and statebuilding concerns the

problematic relationship between populations and their domestic political elites,

in both the developed and the developing world: Western governments today tend

to engage in crisis areas due to a ‘shifting away from the antagonistic and divisive

ethics of the ‘interventionist’ 1990s’ (Chandler 2006: 80). This attitude

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supposedly stems from a lack of self-confidence: Western elites are no longer

‘convinced of their ability to justify their power openly to their own publics’

(Chandler 2006: 107). Paradoxically, also the policies exported to the developing

world (or in crisis areas in general) disconnect domestic constituencies from

autochthon rulers. The result is a proliferation of ‘phantom states’ composed of

technical administrative shells, sustained mainly through external policy-making

and resources, and dangerously detached from their constituent population, over

which they are expected to exercise their political powers.

The picture emerging from Empire in Denial is that of an international

community where Western states rationally engage in statebuilding initiatives in

troubled regions of the world with a view to transferring responsibilities to local

governments and, therefore, avoiding accountability for the impact of their main

international policies. By multiplying the number of states and facilitating the

installation of ‘somehow’ legitimate governments, Western countries consciously

minimize the risk to be held accountable for the developments in troubled areas.

Such a goal justifies two recurrent peculiarities of statebuilding missions: the

emphasis on institution-building and the systematic hurry to organize domestic

elections, even when the stabilization of peace in war-torn societies is still

uncertain and hard security has not been guaranteed yet.

If this last critique can be shared, when focusing on the EU approach

towards BiH it seems that the terms of the Empire in Denial are not so evident. To

a certain extent, it seems that Chandler overstates the capacity of Western

countries (and the EU in particular) to think so strategically and act so

coordinated. The specific attitude of the EU with regards to the reorganization of

the Bosnian state and the constitutional order in that country seems instead to

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move beyond a subtle, strategically planned, and indirect transfer of

responsibilities. Quite on the contrary, the approach of the EU resembles an a

priori refusal of interference that is totally incongruent with the massive field

presence, especially if we analyze in detail the 2006-2009 timeframe. In the

course of this period, the EU reached the apex of its technical approach to

statebuilding, which proved to be unsatisfactory, up to the point of inducing

Brussels to a drastic change of policy and to follow the US in their recent efforts

for constitutional change in BiH. The ambiguity of throwing the hands up with

respect to the constitutional reform process, for such a long time, hides the

strategic decision to avoid direct responsibilities and initiatives in the Bosnian

reconciliation project, something that EU officials interviewed on the matter have

had no hesitation about confirming.

A voice from the Policy Unit of the EU Council who spoke on the condition

of anonymity has openly admitted: ‘we are not doing reconciliation in BiH. This

has been evident since the EU stabilization project was launched. We are not in a

position to face complex political issues as the harmonization of the Bosnian state

pillars’.40 On the same line, a diplomat interviewed right at the end of a four-year

posting in Brussels and service at the COWEB provided an interesting answer to

the question ‘what is the first thing that comes to your mind thinking at the

stabilization of the Bosnian state?’:

Reconciliation. Sovereignty is indeed about reconciliation. This

actually stems from the fact that there is no will among elites to form

a functional state in BiH. This lack mostly can be traced back to the

fact that we have not being able to reconcile elites and population,

truly, on the war. A successful reconciliation scheme at elite level is

vital for the future of Bosnia as a stable state. But to be successful,

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the reconciliation process has to be owned by the Bosnians

themselves. In a sense we could speak about ownership of the

reconciliation process.41

More or less the same comment could be heard at the Commission, even

though the personnel of the Enlargement DG takes more care to emphasize that

something positive has still happened, also with regards to reconciliation.

Approached in mid-2007 (when the idea ‘no police reform equals to no SAA’

became a mantra amongst EU policy-makers and constitutional reform was

completely obfuscated in the EU agenda for BiH) a practitioner from the

Commission with more than ten years of experience on the Bosnian file has

admitted that, even if randomly, ‘things are moving. Surely, we are not tackling

directly the constitutional deadlock because this would mean involving the

Commission in a difficult effort for reconciliation. Still, I believe that we are

doing reconciliation our own way, step by step, progressively, sometimes

indirectly, with different programs and means’.42

Doubts about the effectiveness of this ‘unstructured’ approach and vague

commitment were raised, even by the European Parliament (EP). However, it

seems that voices from the EP, even when they underline legitimate concerns, do

not reach other European institutions so easily. In June 2007, disappointment was

raised from the EP against the inability of EU agencies to elaborate, agree, and

promote clear and sustainable instruments of reconciliation in all the divided

societies at the periphery of the Union. Amongst other voices of dissent, speaking

specifically on the deadlocks of the Bosnian constitutional reform, a MEP from

multiethnic Süd-Tirol questioned: ‘until we clarify the problem of guilt, how can

people get together in a pluriethnic solution?’43

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As will be further clarified in the next section, what is truly paradoxical is

that the attitude of most EU actors towards the Bosnian elites has been based on

the claim of ‘a quasi-sacred respect for sovereignty’. This justification was

constructed to hide a substantial inefficiency: in the attempt to distance itself from

difficult political processes, the EU refrained to approach the Bosnian

constitution-making process. Differently than the US, the EU tried to experiment

a statebuilding methodology based on technocratic relationships and indirect

pressures. To use another metaphor, we could talk about a ‘statebuilding by the

backdoor’ strategy.

2.2. Evading responsibilities, avoiding risks … and sovereignty

is said to be again sacrosanct

The EU entered the Bosnian field in 2003 when it took over the responsibilities of

the international police mission that had been previously directed by the UN and

installed its own mission (EUPM), which was the first field deployment under the

framework of the ESDP. However, the first concrete sign that inaugurated ‘the

EU commitment to Bosnia’ was the Road Map drafted by the European

Commission in 2000. Through this Road Map the Commission identified 18 areas

of reform (divided into three fields: political steps, economic steps, and steps in

the fields of democracy, human rights and the rule of law) that the Bosnian

government was asked to adopt in order to allow the Commission launching a

Feasibility Study for the Stabilisation and Association Process.44

Since then, the EU presence in BiH has gone through a constant and

significant ‘escalation’. A EUFOR Mission ‘Operation Althea’ jumped into the

shoes of SFOR (the second NATO mission to BiH after IFOR);45 the EU

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Commission consolidated its field delegation;46 but most important, with the

adoption of Lord Ashdown’s mandate, the HR was given a ‘double hat’ and his

office was thus renamed OHR/EUSR.47 Since five years, thanks to the initiative of

five leading European countries (France, Italy, The Netherlands, Portugal and

Spain) also a newly created European Gendarmerie Force has been testing its

field capabilities in BiH. Known also as Eurogendfor, this initiative has allowed

‘MSU/Carabinieri’ forces to take over the Integrated Police Unit within the

EUFOR framework.

In spite of this dominant position in the Bosnian field, the mentioned initial

successes, and the potentials of its prospect of membership, Brussels has tried not

to directly engage in the constitutional challenge. Initiatives in this field have

been mostly left to the US, which, regardless of its changed geopolitical

perspectives and renewed field activism in Iraq and Afghanistan, has continued to

prove a relatively active diplomacy in BiH. Washington was behind the ‘April

Package’ of reforms, which was voted down by the Bosnian parliament in spring

2006 (The Dayton Project 2006).48 Following the parliamentary stalemate – and

with the EU focused exclusively on police reform – in 2007 the US remained the

most active mediator between the leaders of RS and their Bosniak opponents, as

shown by the attempt (unfortunately unsuccessful) to bring the Bosnian Serb

leader Milorad Dodik and the Bosniak politician Haris Silajdžić to the same table

in Washington (Associated Press 2007b).

Once also this mediation seemed at dusk, several actors in the US started to

call for a greater involvement of the EU on the constitutional dossier. The

reluctance to tackle the constitutional issue in a structured way was also criticized

by the Dayton Project (i.e. the American NGO that together with the US Institute

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of Peace structured, supervised, and promoted the constitutional talks that led to

the informal political approval of the April Package in 2006). Observers from the

other side of the Atlantic recognized that only a greater and structured

involvement by the EU might have helped overcoming stagnation. A reasonable

call has explicitly been made in favor of a revitalization of this process through

the establishment of clearer links with the SAA and through greater involvement

by the EU in the difficult mediation. The experts working for the Dayton Project

suggested:

one option to consider is for the EC and US to meet in Brussels with

the leaders of the State, the entities, and representatives of Mostar,

Tuzla, Sarajevo, and Banja Luka to discuss this issue and indicate

that, although completely abandoning the Dayton institutions may

not be necessary, nevertheless without significant change in the

constitution and the way in which Bosnian governmental entities

function, there will be little if any chance for Bosnia to obtain EU

membership (The Dayton Project 2007).

However, the EU tried as much as possible to refrain from intervening on

the matter of constitutional change, and it did not manage to develop in Brussels a

framework that could facilitate the domestic confrontation on constitutional

issues. Up until summer 2009, the main priority in Brussels remained the reform

of the police. After the summer, insisting on the necessity of a joint effort for

constitutional change in BiH, the new US Administration succeeded to involve the

EU in the debate. How to explain the prolonged reluctance of the EU? The current

impasse over the constitutional reform was seen as a mine field, too risky and too

complex to be approached. In spite of the prolonged externally-facilitated

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institutional restructuring and the EU membership perspective, there is no

agreement among Bosnian elites on how to replace the constitution attached to the

DPA. Interestingly, party leaders have refrained from formalizing in a process of

‘constitutional consolidation’ the institutional developments already achieved over

the years (largely through the actions of the international community and the

OHR). As in the immediate aftermath of the peace settlement in 1995, the three

constituent people still have conflicting views on how the central Bosnian state

should be organized. In particular, Serbs and Bosniak have antithetic positions.

The latter consider the main structure established through the DPA as a starting

ground for progressive centralization; the former instead strenuously defend the

division of labour between the central state and the Entities, thus pointing at the

constitutional framework of the DPA as to an insurmountable ceiling.

In spite of the clear difficulties, a process of constitutional reform and, in

parallel, a definitive decision by the international community to relinquish the

Bonn Powers still represent the only possible combination through which BiH can

be regenerated as a truly sovereign and multiethnic state. As Philip Roeder (2007:

63) has pointed out, ‘the sovereign state is distinguished from other jurisdictions

by its authority to allocate and reallocate decision rights within its border’.

Against this backdrop, it seems clear that a successful constitutional process is an

inescapable moment of sovereign reallocation of powers and prerogatives.

Rumors from the DG Enlargement confirmed that in 2007 at least

fundraising was undertaken. According to one EU official, at that time the

Commission had gathered adequate financial resources designed specifically to

support the process of constitutional reform. From the information obtained from

a top-ranking EU official, the Commission apparently was ready to send to BiH

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up to one million euro for this purpose. The same source further specified: ‘people

in BiH have been informed about this. If they want to start talking about the

constitution we put the money in, and perhaps some of our expertise. We are

ready to set up proper frameworks and bureau for this. For the rest, we keep going

with the SAP’.49

Undoubtedly, the readiness of the Commission (at least on the financial

level) has to be appreciated. But to stimulate complex processes like constitutional

reform in a post-war fragmented state, unfortunately, does not only depend on the

availability of financial resources. Clearer political decisions on strategies to be

implemented and paths to be chosen and pursued are probably more relevant in

such cases; this is particularly important for the international community when it

is clear that autochthon elites do not yet cooperate in a climate of reconciliation.

Up until mid-2009, no common European strategy was adopted on the

matter. As emphasized above, the frictions were institutional and diplomatic,

normative and methodological, and in several respects, they had a lot to do with

sovereignty. The flag of sovereignty was indeed often raised by EU officials when

they were asked to elaborate on the shortcomings of the international community

in BiH. The ‘sovereignty excuse’ was manipulated and presented systematically,

often to the extent of depicting paradoxical explanations. According to a diplomat

who completed a four-year mandate in the COWEB and has a prolonged field

experience in the Western Balkans, it should be clear that

…the EU does not have its own vision of the Bosnian sovereignty

and does not intend to produce direct policies related to the

reorganization of sovereignty. There is not indeed a design for the

redefinition of the Bosnian sovereignty. Who is dealing with

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sovereignty is the UN. Probably Kosovo will be an exception to this

EU reluctance, but it is too early to say. The interference with

sovereignty in BiH takes place with the use of the Bonn Powers, not

with the hat of the EUSR.50

Even if it addresses only indirectly the problem of the current constitutional

impasse of BiH, this statement provides a series of significant hints. Prior to

elaborating on them, a preliminary clarification has to be made. After an extensive

series of interviews (undertaken between late 2006 and 2008) with other

diplomats attached to national permanent missions to the EU and serving as

delegates to the COWEB, the statement above represents a synthesis of the vision

of sovereignty and EU responsibilities shared by diplomatic elites sitting in

Brussels and working on BiH and the Western Balkans.

The constitution is identified by definition as the maximum expression of

the sovereignty of a state, so that – in the eyes of basically all delegates in the

COWEB – it would be too much not only to intervene formally but also to

provide targeted external incentives to stimulate the process for the revision of the

constitutional architecture. Perhaps forgetting that the Bosnian constitutional

arrangement in force was agreed at a US air force base and signed in Paris (not to

talk of the implication of EU integration on national legislative and governing

systems), EU elites depict the constitution as the final test for the maturation of

the country that should not be ‘changed or distorted’ by any kind of European

carrot or stick.

A further element of interest has emerged when, specifically asked to

elaborate on the massive EU field presence, practitioners in Brussels made no

direct or indirect reference to the idea of sovereignty as an internationally shared

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responsibility; at best, they produced general statements about guilt and the EU

mistakes of the early 1990s or they referred to a vague idea of a ‘European family’

based on common history. Surprisingly often, EU officials openly admitted that

BiH provided a context with optimal conditions for the EU to test its operational

capabilities. The EU should have indeed experimented its potentials in

neighboring areas prior to engage with large scale missions also in more delicate

scenarios, far beyond its near abroad. Finally, the connection between stability in

BiH and security throughout Europe represents another equation to which EU

officials normally referred to. This mix of strategic considerations, contingent

evaluations, and feelings has been spelled out in an interesting overview by an

official from the Commission:

BiH should be an EU country. Our coming into the scene has been

partially determined by the disengagement of the US but not only.

Suddenly we realized that we should not have allowed having a

tumor in the heart of Europe and also that only EU countries were

entitled to help the transition of another European country. Now it is

all our challenge to Europeanize BiH.51

When asked to explain the EU reluctance to intervene on the constitutional

field and the obstinacy to focus on police reform and technically-driven changes,

the diplomats interviewed have pointed their fingers merely to the prolonged

indifference of the Commission – presented as the Deus ex machina of the EU

enlargement process52 – apparently forgetting that also what happens in the

Council and among the permanent missions in Brussels is relevant for the EU

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policy-making processes. At least on paper, a first timid sign from the Council

was actually given at the beginning of 2007. Precisely, this arrived in February

2007 when a renewed mandate of the EUSR was officially adopted. According to

article 3(p) of the updated EUSR mandate, amongst many other tasks, the latter

should ‘provide political advice and facilitation in the process of constitutional

reform’ (European Council 2007).

The criticism made by the Council against the Commission, could also be

sensed at the EP; even though, at a closer look, the disapproval from the EP

targeted the work and initiatives of both the Council and the Commission. For

instance, interviewed on this specific matter at the time when both the

Commission and the Council showed an exasperated attention for police reform

and the US was the only actor trying to mediate on constitutional reform, the MEP

Doris Pack had no hesitation to declare:

I didn’t understand why Dodik and Silajdžić went to Washington.

Anyway, this has been a failure of the Commission and mostly of

Solana to change the political climate in BiH. The Bosnians need

people who really understand them. In particular, I have the

impression that the Commission is too technically oriented. You

have to go there and speak to politicians. The Commission sees itself

as a technical body.53

Unfortunately, as it will be explained in the coming sections, the facilitation for

the constitutional reform has been hindered by the lack of coordinated and

unequivocal political support from the Council to the HR/EUSR. While the

German HR/EUSR Schwarz-Schilling had initially received a blessing to operate

on the matter and was then left isolated in the difficult undertaking, the story that

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regards his successor turned out to be quite different. The Slovak HR/EUSR

Miroslav Lajčàk54 was sent to Sarajevo with the idea to restore that gradualism in

the reform agenda that had been peculiar at the time of Ashdown’s tenure. To

serve this purpose, during summer 2007, the police reform was re-attached

priority status. Actually, Lajčàk had been properly instructed to make appear in

his daily work that this specific reform had not much to do with the constitutional

architecture of the state.

Witnessing how Schwarz-Schilling slowly lost support to stimulate the

constitutional debate (and how he ended up not being backed at all by any

political will even to simply promote structured discussions amongst local elites

on how to consolidate the institutional changes de facto in place) a voice of

criticism from within the OHR/EUSR has claimed that Lajčàk’s instructions

depended on the following factors:

In Europe there is no shared model; no pre-determined

understanding of what is a state or a constitution. Moreover, there is

no shared vision over democracy, the rule of law, the idea of nation,

or even the idea of rights. Evidently, there cannot be smooth political

convergence at the Council that would allow overcoming these

normative clashes. The problem is that only by solving these

divergences it will be possible to choose a path between the nation-

building approach and the technical approach. The former is a latent

idea that is always there at the Commission, mostly because of the

national background of the people that are currently on the Bosnian

file. But the latter remains a predominant vision, based on the idea

that all countries are the same and that there is not so much

difference between Bosnia and the other former Communist states

that already went through the enlargement process.55

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To continue with the reconstruction of the hands-up attitude shown by the

EU towards the Bosnian constitutional impasse between 2006 and 2009, another

look at the work of the EP is needed. Clearly, the Brussels- and Strasbourg-based

institution does not have any direct or substantial impact on the CFSP or the

enlargement process; nevertheless, it remains a relevant forum for discussion and

political inputs.56 In March 2007, in a recommendation from the EP to the

Council, the Bosnian constitutional issue was analyzed with particular attention.

The EP recognized that ‘deep reflection should be undertaken among the different

components of society in BiH on how to transcend the rigid ethnic division of the

country so as to reform its structures and make it more flexible and compatible

with the European democracies’ (European Parliament 2007). But what were the

responsibilities on the part of the EU to properly stimulate a similar process for

reconciliation? Not much was said on the matter. Even if indirectly, an answer

came during the closing session of the yearly EP-BiH Inter-Parliamentary

Meeting. Talking to her colleagues from BiH about constitutional reform, the

German MEP chairing the meeting (who was then also Chair of the EP delegation

for the relations with SEE countries) made the following points clear:

We have the money, we have the know-how and we could put it. But

we have no responsibilities. You have to find the compromise … It

is your constitution … Moreover, note that I do not like that there is

someone who goes to Washington to discuss his own constitution.

You do not want to become members of the United States of

America, so come here to us! Let’s stay home, doing homework

without taking this long trips to Washington, that is so far away!57

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On the same line, the vice-president of the EP delegation for SEE countries,

declared in that occasion: while ‘it is true that the Americans are the ones who

made peace happen, we cannot accept anymore an abstract concept of constitution

to be imposed. We want a process and I hope that people understand that

Washington is not the right address to make this happen’.58 Both these

interventions confirm that while at the EU level it is easy to find positions against

excessive American intrusiveness into the Bosnian constitutional reform process,

it is equally difficult to propose clear strategies and launch political initiatives that

enjoy wide political consensus amongst member states. This was so evident to the

eyes of the Bosnian MPs invited to Brussels that one of them replied to the

exhortation above with a rather sarcastic analysis:

Bosnia cannot survive as a state based on two separate entities and

three people. Dayton is an unfair and unpractical constitution. I

could even accept another external imposition if it is fair. Obviously,

it would not be good if the US breaks the constitutional deadlock.

We would be pleased if the EU takes over more responsibilities in

the constitution reform process. I speak as a citizen prior to

launching this proposal as a Bosnian MP. It is a long and difficult

process, but the EU has to allow us to make it.59

3. Conflicting methodologies for the constitutional reform

process (2005-2007)

The intra-EU institutional divergences presented in the previous section cannot

explain alone why Brussels has not yet developed a coordinated effort to help

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Bosnian elites cleaning up their internationally established constitutional

(dis)order. This analysis has to be completed with additional elements gathered on

the Bosnian field, particularly at the OHR/EUSR offices, as well as with the

elaboration of a series of elements acquired from various members of the

diplomatic circle in Sarajevo.

Looking at the past three years, it is possible to sum up two main different

approaches to constitutional reform that were discussed among international elites

in Sarajevo. Some of them were timidly presented and pursued, while some others

were accompanied by more vigorous diplomatic sponsorships and political

initiatives. The two main approaches have taken the form of the American

sponsored April Package (an externally designed and introduced reform plan) and

a law-based commission supported by some (but not all) EU member states and

somehow negotiated by the HR/EUSR Christian Schwarz-Schilling at a very

preliminary stage. It will be made clear in the following paragraphs that the

position of the EU, other than suffering from the lack of cohesion and coherence

among its member states, has suffered from the attempt to ‘technify’ the

relationship with this potential candidate member and emphasize police reform

and gradual institutional changes.

Section 4 will close this chapter with the analysis of the so-called ‘Butmir

process’, which took place in late Fall 2009. The recent convergence of the US

and the EU eventually made possible the creation of a framework for

confrontation over constitutional reform, which has involved the key actors of the

Bosnian domestic political environment. However, already during the very early

stages of the process, it became clear that the debate was too negatively

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conditioned by the precedent prolonged marginalization of constitutional change

from the EU reform agenda.

3.1. The negotiations for the ‘April Package’ and the US

diplomatic initiative (November 2005 - June 2007)

The first concrete attempts to reach a structured and comprehensive constitutional

reform in Bosnia have to be attributed to the US diplomacy. These initiatives were

pursued through the persistent commitment of the (now ex-) US Ambassador to

BiH, Douglas L. McElhaney, who headed the US mission in Sarajevo between

September 2004 and September 2007 (when he left his post to Amb. Charles L.

English). Throughout his mandate, McElhaney constantly sought to build, on a

bilateral basis, close relationships with leaders of main political parties, with a

view to push them towards a common project for constitutional reform. The

methodology blessed by Washington and put in practice in Sarajevo was clear:

party leaders should be convinced with targeted efforts to grant their personal

commitment to a schematic reform plan; once the plan was drafted by the

expertise identified by the US and approved in Washington, leaders were asked to

subscribe it as a common proposal for constitutional change.

The process was launched by the US Embassy in Sarajevo in mid-2005. A

few months away from the tenth anniversary of the DPA, US diplomatic

representatives in BiH started to explore what initiatives could be organized by

the end of the year, possibly in Sarajevo. As confirmed by a high-ranking US

official ‘we had an important anniversary on the way, but the mood in the country

was not celebratory at all. So we thought it was us who, in a professional way, had

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to do something that could have pushed things at least a bit forward. Otherwise

the tenth anniversary of Dayton would have just underscored the total lack of

progresses’.60 As clarified by the same source, Amb. McElhaney sent to

Washington a list of deliverables (in which the goal of broad constitutional change

was only one amongst other possible items on which to focus) and confirmed his

readiness to ‘take advantage’ from the tenth anniversary of Dayton in order to

push local elites to move forward on the reform agenda.

The proposal was particularly welcomed by the Under Secretary of State

(USoS) for Political Affairs, R. Nicholas Burns, who between 1995 and 1997, had

developed lots of experience on the Bosnian peace-making process, working

closely to Madeleine Albright as Spokesman of the Department of State and

Acting Assistant Secretary for Public Affairs. By welcoming McElhaney’s

activism, Burns proposed the organization of some events in Washington. The

meetings should have gathered Bosnian top governmental officials (e.g. the

Chairman of the tripartite Presidency of BiH Ivo Miro Jović and the RS President

Dragan Čavić) other relevant members of the domestic political community

(eventually, these included: Mate Bandur, the back then ‘rising’ RS social

democrat politician Milorad Dodik, the former FBiH President Safet Halilović,

and the SDP leader and former Foreign Minister Zlatko Lagumdžija), as well as

key representatives from relevant Transatlantic institutions and organizations.

On 21-22 November 2005, a series of celebratory events were organized in

Washington. On November 21, the United States Institute of Peace (USIP) hosted

a conference titled ‘Beyond Dayton: The Balkans and Euro-Atlantic Integration’,

where Bosnian political representatives met at the presence of USoS Burns, Amb.

Richard Holbrooke, the HR/EUSR Paddy Ashdown, and other representatives of

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the international community in BiH (US Department of State 2005b). In his

opening speech, Burns made a clear call for political commitment towards

constitutional reform; moreover, he reminded to the Bosnian politicians attending

the meeting that their presence in Washington had to be intended as an

opportunity ‘to consider the future of Bosnia, the modernization of the Dayton

Accords themselves, and to agree on a new, more unified Bosnia-Herzegovina for

the generations ahead … The Dayton Accords need to be modernized. Bosnia

needs to create new national institutions that can chart a new future for the

country’ (US Department of State 2005a).

On the following day, three additional events took place. The first was a

conference of religious leaders from BiH (US Department of State 2005f). The

second was a commemorative ceremony, in honour of Amb. Robert Frasure,

Nelson Drew, and Joseph Kruzel, three American diplomats who were killed in

BiH in 1995 (US Department of State 2005d). The third was a meeting between

the US SoS Condoleezza Rice and President Jović (US Department of State

2005c) for the signing of two agreement, one in the field of defence (a bilateral

agreement on Status Protections and Access to and Use of Facilities and Areas in

BiH) and one on the field of civil aviation (a bilateral Open Skies Civil Aviation

agreement). On this last occasion, SoS Rice called on Bosnian leaders to start

working on institutional centralization and create a ‘stronger energetic state’. Ms.

Rice stressed that ‘to advance the promise of peace and progress, we must now

move beyond the framework constructed a decade ago. A weak, divided state was

appropriate in 1995, but today in 2005, the country needs a stronger energetic

state capable of advancing the public good and securing the national interest’ (US

Department of State 2005e).

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At the end of the two-day celebrations, the most important outcome was a

joint statement, signed by all Bosnian leaders gathered in Washington, in which a

general (not to say timid) commitment to constitutional reform was highlighted.

At the final press conference the US leadership was challenged on the substantial

strategic objectives of the project and the real goal pursued by the American

government. Confronted with the idea that ‘constitutional reform’ had been put on

the table as a rather vague concept, USoS Burns provided a detailed clarification

of the US diplomatic strategy, which is worth quoting extensively:

Actually, the concept of constitutional reform is quite specific. It's

not vague … When I proposed six weeks ago that they ought to

agree to constitutional reform that was considered a rather radical

notion because constitutional reform implies that the Dayton

Accords are not immutable. It implies, specifically to the Bosnian

Serbs, that there has to be a process of strengthening the state and

not just the entities that, of course, received most of the power at the

Dayton negotiations. And it assumes – constitutional reform – that

there will be a narrowing from three presidents to one and assumes

the development of a strong prime minister and it assumes the

development of a strong speaker of the parliament and strong

parliament. So it's very specific in that sense. What we hope they'll

agree to tomorrow is, as political party leaders in the country, that

they will dedicate themselves to this process of constitutional

reform, that they will pursue that over the coming months in advance

of the 2006 elections. We would hope that's what they propose --

commit themselves tomorrow. I don't think you'll find specific

language in the agreement about the elements -- the type of

presidency, the type of prime ministership, the type of parliament --

because that has to be worked out subsequent to any agreement

tomorrow. That would have to be worked out in the parliament of

Bosnia-Herzegovina, we hope, over the next few months. But when

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they say they're agreeing to constitutional reform and to agree on the

elements of it in the next few months, that is a very specific process.

It's not vague at all. I just wanted to make that note (US Department

of State 2005a).

In Washington, Bosnian leaders made only a general commitment and

confirmed in principle their readiness to contribute to a process that ‘will enhance

the authorities of the state government and streamline parliament and the office of

the presidency’ (as quoted in McMahon 2005). Party leaders also agreed that the

process should have been concluded at the last by the end of March 2006. This

deadline was identified by the US mediators with the date of the next general

elections in mind (which were scheduled to be held in October 2006). According

to the expertise in Washington, at least six months would be necessary to

implement a first structured reform scheme of the Dayton constitution. Based on

this shared political will, the US Embassy in Sarajevo launched a process of

domestic political confrontation on key issues related to constitutional change and

tried to promote a draft agreement that could serve as a common minimum basis

for reform.

Respecting the deadline set up in Washington, in late March 2006, the

commitment to pursue on the path of constitutional reform was turned into a

reform package, which later would be labeled as ‘April Package’. The package

was for the main part prepared on the other side of the Atlantic, by American

intellectuals and former practitioners who worked under the guidance of the US

government. Formally however, the main preparatory discussion forums,

workshops, and negotiations took place outside the Department of State. The

initiative of the Department of State converged into the activities of USIP, which

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at that time had a large program on BiH, thanks to the leadership of former

Deputy HR in BiH, Amb. Donald S. Hays, who then led the USIP Center for Post-

Conflict Peace and Stability Operations.61 At the same time, the drafting exercise

was carried out back-to-back with a prolonged multilateral confrontation in

Sarajevo. After the meetings in Washington, Amb. McElhaney started to gather

main party leaders on a regular basis (at least once a week from December 2005

until April 2006). A source from the US Department of State confirmed that

Ambassadors from relevant EU countries attended only on some occasions those

working sessions among local politicians, but they remained merely sporadic

observers.62

Considering that this chapter focuses on the methodological, normative,

and political frictions underpinning the international debate for constitutional

change in BiH, detailed references to the specific content of the April Package (as

well as to the other technical institutional changes that have so far been discussed

on the various negotiation tables) are not relevant. However, the main proposals

encompassed in the April Package can be summarized as follows: definition of a

set of competences to be formally assigned to state level institutions; abolishment

of the bicameral system; reform of the tripartite Presidency at state level; changes

to the structure, electoral modalities, and working procedures of the Council of

Ministers.63

Once the Package was ready, the US diplomacy intensified its lobbying

activities in BiH, with a view to consolidating the final consensus among key

Bosnian political leaders on the main lines of the proposed reform. This process

consisted mainly in bilateral contacts and negotiations, as well as in a series of

multilateral working sessions with representatives from main parties. Despite all

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these initiatives, however, the focus on party leaders did not paid entirely off.

Certainly, the adoption of the reform plan was affected by some contingent

factors; in particular, the tensions typical of the pre-election environment had a

negative impact on the debate. But the main weakness of the Package probably

lay in its conception and negotiation modalities. Since no talks were undertaken

with broader delegations of Bosnian MPs and no contribution was sought from the

representatives of the domestic cultural establishment, the Package did not pass

the crucial test in the Parliament, which voted down the reform project with a tight

majority. The fate of the Package was affected by the decision to rely on targeted

external pressure from Washington and from the American Embassy in Sarajevo

on key party leaders, thus avoiding a broader and more open debate with the rest

of the political establishment.

The decision to persist with this approach was probably reinforced by the

promise reiterated by some politicians – e.g. Haris Silajdžić and Sulejman Tihić,

who for clear opportunistic reasons at the beginning of the process were strongly

in favour of the proposed reform – to further promote the package in the domestic

arena. These two politicians, together with other leaders belonging to the Bosniak

political community, saw the institutional and procedural changes outlined in the

April Package as a good starting point to promote further centralization, from the

Entities to the national government. In contrast with this approach, Bosnian Serb

leaders have been historically for the maintenance of a highly decentralized

system based on the recognition of strong prerogatives to the Entities.

It should not be disregarded however, that the dismissal of the April Package

in the Bosnian Parliament shall also be attributed to key Bosniak MPs. The

two/third majority was not reached only for two votes, and it is not a mystery that

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the six Bosniak representatives belonging to Silajdžić’s SBiH were among the

sixteen MPs who voted against the approval of the April Package (Marko 2006:

213). The vote in the House of People confirms that, probably hoping to achieve

even a better deal in the sense of centralization, Silajdžić did not push until the

end for the approval of the proposed reform within his same party.

3.1.1. The issues of entity voting and the vital national interest clause

Following the dismissal of the reform plan by the Bosnian Parliament, the US

Ambassador nevertheless continued systematically to develop consensus around

the Package. Amb. McElhaney actually pursued in this attempt until June 2007,

when the end of his mandate approached. Essentially, in the time frame between

the negative vote of the Parliament and the beginning of summer 2008, there was

a quiet but constant negotiation on the main terms of the Package. Several

problematic issues on the reconfiguration of the central Bosnian institutions were

at stake; however, the hinge of all discussions in this period was mostly entity

voting and the revision of the so-called ‘vital national clause’, which allows the

representative of each constituent people to block legislation. On the issue of

entity voting, the text of Bosnian constitution attached to the Dayton agreement

reads as follows:

All decisions in both chambers shall be by majority of those present

and voting. The Delegates and Members shall make their best efforts

to see that the majority includes at least one-third of the votes of

Delegates or Members from the territory of each Entity. If a majority

vote does not include one-third of the votes of Delegates or Members

from the territory of each Entity, the Chair and Deputy Chairs shall

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meet as a commission and attempt to obtain approval within three

days of the vote. If those efforts fail, decisions shall be taken by a

majority of those present and voting, provided that the dissenting

votes do not include two-thirds or more of the Delegates or Members

elected from either Entity’ (US Department of State 1995).

Still today, these norms represent the most critical points of friction between

political leaders with different ethnic and religious backgrounds. The CoE has

repeatedly criticized these norms, calling for a radical reform that should deprive

nationalist political leaders of a powerful tool for legislative obstructionism. For

instance, in one of the latest resolution dealing with this particular issue, the

Parliamentary Assembly of the Strasbourg-based organization has emphasized the

following points:

The entity voting system in the House of Representatives and the

excessively broad scope of the “vital national interests” clause,

together with the related veto mechanism in the House of Peoples,

must be reformed for Bosnia and Herzegovina to become a genuine

civic state for all those living in it. Members of Parliament should act

as free and democratically elected representatives of all the citizens

of Bosnia and Herzegovina and not as defenders of purely ethnic

interests. The so-called “Others” should be given an effective

opportunity to participate fully in political life, by running in the

election for members of the presidency and participating in the

designation of delegates to the House of Peoples’ (CoE 2008: para.

4).

On the very same line, the latest country progress report released by the

European Commission in October 2009 has stressed the following critical issues:

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While progress has been made under the current constitutional

structure, it still offers too many possibilities for political

obstructionism. The misuse of provisions such the “entity voting”

[Article IV 4 (d) of the Constitution of Bosnia and Herzegovina] and

complex rules on quorums prevents swift decision-making and,

therefore, hinders reform and the country's capacity to make rapid

progress towards the EU. Among other things, the problem of

blockages due to the entity voting rules needs to be addressed, and a

stricter definition of the vital national clause in the Constitution is

necessary’ (European Commission 2009)

From its part, the HR/EUSR has repeatedly pointed at this issue as one of the

most critical deadlock hindering the political and legislative life of BiH. In the

report to the UNSC presented by HR/EUSR Valentin Inzko last November

(2009a), it has been reiterated that still today:

One of the key problems related to the work of the Bosnia and

Herzegovina Parliamentary Assembly is the trend by which the

political parties support draft legislation in the Council of Ministers,

only then to oppose the same draft laws in one or both houses of the

Parliament … Overall the performance of the Council of Ministers

and the Bosnia and Herzegovina Parliamentary Assembly has been

poor, with ethnic and entity agendas prevailing over the State’s

intentions to fulfill requirements for EU and NATO membership.

Apart from the technical and political criticalities related to the reform of

the entity voting procedure and the vital interest clause, the defeat of the April

Package in the National Parliament was depending on excessive confidence that

the ‘party leaders approach’ could work. A US diplomat who was directly

involved in the negotiations for the April Package admitted: ‘our focus on leaders

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was justified with the idea that in fractured courtiers like BiH, to get change you

need to force “the big boys” in the political arena to accept it. The problem in

Sarajevo was that the same big boys who signed the Declaration in Washington

did not lobby their party members sitting in the Parliament at home’.64

As this statement confirms, to a certain extent, the process that led to the

debate on the April Package in the Bosnian Parliament represents a manifestation

of the Holbrook and, more in general, standard American diplomatic practices in

post-conflict areas. This could be summarized as follows: subsequent to the

identification of key political actors, these must be brought around a negotiation

table; once some kind of general consensus is reached, the compromise is

wrapped and presented without much alternative choices, and in the absence of

broader and more open multilateral discussions. Looking at this attitude from

Brussels, a diplomat from an EU member state commented: ‘the US confirmed

that they have no problem in substituting themselves to local elites. The April

Package failed precisely for this reason. If the EUSR launches a process with

shared political support, he could probably achieve some results. But today

support for such initiatives is at the minimum’.65

3.2. Schwarz-Schilling’s convention approach (2006-2007)

The saga of the so far unsuccessful constitutional reform process reveals other

nuances if we look at what happened in Brussels and at the OHR/EUSR,

especially during the tenure of Schwarz-Schilling. The appointment of the

German HR/EUSR – known in the diplomatic environment in Sarajevo as the

‘quiet’ High Representative – was promoted by some EU member states (with

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Germany at the forefront and Austria supporting) with two ambitious goals in

mind. On the one hand, Schwarz-Schilling was expected to be able to re-enter the

Bosnian arena (where he had already experience) and promote as much local

ownership of the reform agenda as possible. On the other hand, the unwritten

mandate (supported only by some member states) was to pave the way for both

the closure of the OHR structure within a year and the inauguration of a

reinforced EUSR Office.

In his inaugural TV address to the Bosnian people, while reiterating the

crucial importance of the SAA and the strategic implications of a possible

participation of Bosnia in NATO’s Partnership-for-Peace Programme, the German

HR/EUSR clarified that ‘[t]he steps that must be taken in order to reach these

milestones are known – and these will form the agenda of my work. But to take

these steps, Bosnia and Herzegovina must be fully sovereign. That means that I

must step back’ (Schwarz-Schilling 2006). Appreciated for his consolidated

experience as a mediator in the Western Balkans, Schwarz-Schilling was seen by a

relevant (but not decisive) section of the EU Council as someone who could have

completed the installation of EU-driven statebuilding, while encouraging

recalcitrant political factions into a discussion on key reforms of constitutional

relevance.

During the tenure of Lord Paddy Ashdown, the prevailing methodology

chosen by the HR/EUSR resembled the one sponsored by the US, at least in its

tendency to focus on key party leaders. Moreover, it was clear that back then the

HR/EUSR benefited mostly from the support of the Anglo-Saxon axis in the

Steering Board of the PIC. Methods and objectives changed drastically as soon as

Schwarz-Schilling took office. Contrary to his British predecessor, he tried to limit

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intrusiveness through the exercise of the Bonn Powers and started to deal more

directly with the issue of constitutional reform. Emphasizing the importance of

inclusive and systematic multilateral dialogue, he started to deal more directly

with the issue of constitutional reform. In practice, Schwarz-Schilling put on the

table what could be referred to as ‘the constitutional convention approach’. In the

opinion of the German HR/EUSR, a Nice-style convention – open as much as

possible, also to the civil society and cultural establishment – should have been

convened to debate over the constitutional future of BiH.

However, the tensed political climate induced Schwarz-Schilling to believe

that, even if the convention was launched, openness and inclusiveness would only

result in endless talks. At the same time, as soon as the plan for a broad

convention appeared too unrealistic, from the legal department of the EUSR a new

proposal was launched under Schwarz-Schilling’s supervision: a narrower law-

based constitutional commission could be nominated passing through the Bosnian

Parliament. According to information obtained at the OHR legal department, this

commission was to be composed of one main council gathering only

representatives from the political environment (mostly chosen from amongst the

Bosnian MPs) and supported by a technical secretariat.

This approach was not welcome in Brussels, where it was seen as a process

without full ownership. Criticism from Brussels targeted in particular the

excessive involvement of internationals in the offices designed to support the work

of the commission and its steering troika. The idea launched by Schwarz-Schilling

was indeed to nominate three co-chairs: one from Washington, one chosen by the

EU, and only one selected from amongst national politicians or within the Bosnian

cultural community. Moreover, the prevailing opinion was that the secretariat had

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to be equally composed of locals and internationals. Several possible ways to

organize such a secretariat were considered; however, the idea of the HR/EUSR

was to divide it ratione materiae into three sub-sections (economy, legal affairs,

and security-related reforms), which had to be supported by a joint administrative

unit.

On several occasions (both in Brussels and at the meetings of the PIC-SB)

Germany confirmed its readiness to take on the main financial burden for the

creation of the structure (which potentially, could have also been supported with

the previously mentioned 1 million euro extra-budget allocated in mid-2007 by the

Commission for BiH). In principle, all Bosnian parties expressed their

appreciation for the initiative and confirmed to be in favor of a similar exercise.

But no concrete politico-diplomatic support came from the EU Council. The

feasibility of this project started to fade as summer 2007 approached, for the

reluctance of most EU member states. More or less in the same days, the US failed

in Washington their last strenuous attempt to mediate between Dodik and Silajdžić

in view of revitalizing the April Package.66

3.3. The last round of exploratory talks under the tenure of

Schwarz-Schilling (April/June 2007)

Following this double defeat, the HR/EUSR facilitated some rounds of

exploratory talks. Once again, the result was uncertainty: while most parties

confirmed their willingness to accept a law-based commission, some started to

reconsider their support. The position of the Croatian Democratic Union (HDZ-

BiH) was particularly interesting. Initially, the critical issue was mostly related to

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what kind of legal basis should granted to the commission. HDZ-BiH, the

Croatian Democratic Union 1990 (HDZ 1990), the Alliance of Independent Social

Democrats (SNSD), the Party for Democratic Progress (PDP) and even the

Serbian Democratic Party (SDS) were in favour of a law-based commission.

However, Sulejman Tihić succeeded to convince HDZ-BiH to change side. The

strategy pursued by the leader of the Party of Democratic Action (SDA) was

driven by a desire to obstruct the creation of a constitutional commission, hoping

that an opportunity to re-launch the April Package would come. Tihić was indeed

one of the main sponsors of the Package.

When at the beginning of summer 2007 HDZ-BiH withdrew its support

from the project, also the exploratory talks were considered as closed. The idea of

persisting in rounds of debate was pursued by Schwarz-Schilling on the basis of

the conviction that only through structured dialogue could it have been possible to

launch a comprehensive process. The HR/EUSR probably thought that only

within the framework of a dynamic process could the different visions promoted

by Dodik (Prime Minister of Republika Srpska who supports the maintenance of a

highly decentralized system based on the recognition of strong prerogatives to the

Entities) and Silajdžić (who is in favour of the centralization of the state) be

eventually reconciled.67

Beyond Schwarz-Schilling’s personal commitment, what was the role of the

EU in these talks? Several OHR/EUSR officials have confirmed that, while the

EU Council started to focus increasingly on the issue of the upcoming

independence of Kosovo, the Commission turned out to be reluctant to support

these consultations. As confirmed by a representative on the ground, the

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Commission prioritized the debate on police reform alone, which had become a

key prerequisite for the signature of the SAA between BiH and the EU:

The funny thing of the Commission is that they always make lots of

objections but they never openly say no and take responsibility for

their refusals. The Police reform is part of the conditionality package

that was put on the table for the formalization of the SAA. The

Commission is afraid that emphasis on constitutional reform might

spoil their circumscribed and technical efforts. In light of this, I am

afraid that Mr. Lange68 and his team at the Commission lack

completely a proper understanding of the Bosnian environment and

its dynamics.69

As we will see more extensively in the next chapter, with the arrival of

Miroslav Lajčàk the reform priorities of the international community were

switched again. The change respected the input of the Commission, paving the

way for one of the most delicate crises experienced in BiH since the

implementation of the Dayton agreement has started. Clearly, the Commission’s

‘technical understanding’ of EU-driven statebuilding is based on the idea that the

countries of the Western Balkans are like all others that have already gone through

the enlargement process; therefore, they are equally expected to strive to take over

the acquis communautaire and implement it line by line.

The critique that can be moved against this view is simple: BiH is a rather

peculiar country. To certain extent, it is possible to state that in BiH there is the

absence of a social contract between different ethnic communities. There is not

one political BiH, but a state divided into three political ethno-religious groups.

Pre-requisite for the construction of the state is sufficient cohesion at the socio-

political level. Currently, BiH resembles a mere assemblage of ethnic group that

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do not share the same commitment to the state. However, the attitude of the

Commission is justified in Brussels by making reference to the idea that, while

technocratism can be slow to induce political and institutional development, it

should nevertheless be privileged because it preserves local ownership of changes.

4. The 2009 attempt at the finalization of a ‘Dayton II’

constitutional compromise: from the Prud process to

Butmir retreat

On 8 November 2008, the presidents of three key parties from the Bosnian

political arena (the Croat Dragan Čović for HDZ, the Serb Milorad Dodik for

SNSD, and the Bosniak Sulejman Tihić for SDA) signed a joint statement on key

reforms, which followed another prolonged period of paralysis. According to the

text of this agreement, which was finalized in the Bosnian village of Prud,

constitutional reform should be placed at the very top of the domestic reform

agenda. The three leaders presented themselves as ready to play a pivotal role in

this difficult area of reform and expressed hope that other parties would also

commit to bringing a positive input to the process.

The final statement agreed in Prud stated that all efforts at constitutional

reform would seek progress in four main areas: harmonization of the BiH

Constitution with the European Convention on Human Rights and Fundamental

Freedoms (ECHR); responsibilities of the State; more functional BiH institutions;

and territorial organization of the mid-level of government (OHR 2008a: 1).

Moreover, the Prud Declaration encompassed a reference to the resolution of the

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impasse on the legal status of the Brčko district, to be ‘regulated by a

Constitutional Act, or by a Law with a constitutional two-third majority’ (OHR

2008a: 2).

While this agreement lacked broader consensus across the wide and

complex Bosnian political environment – contrary to what was initially hoped for

by its three original signatories – it did contain a number of interesting points.

Amongst these, it is worth noting that the three aforementioned leaders, at the

moment of launching the Prud process, explicitly called for direct international

assistance in a possible structured process of constitutional reform. Čović, Dodik,

and Tihić openly stated that: the ‘Constitution should be changed by operation of

amendments to the current Constitution and that they will use expert assistance of

international institutions’ (OHR 2008a: 1).

Based on the initial entente signed at Prud, the three leaders continued to

meet in tripartite format for a few months after their first rendezvous, gathering on

average once a month. According to the analysis proposed by the International

Crisis Group (ICG 2009b: 4-5), when they met on 26 January 2009 Čović, Dodik,

and Tihić apparently reached agreement on one of the most sensitive issues

related to the reorganization of sovereignty in the country: the opportunity to

redesign the middle-level of governance by overcoming the current structure

through the creation of four entities. This promising agreement, however,

reflected a very low common denominator. No consensus was reached on how the

boundaries of these four new entities would actually be designed, structured, and

put to work in terms of institutional arrangements.

On the one hand, Čović and Tihić stressed the idea that the reorganization of

governance in the country should be based on completely new internal

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boundaries. The IEBL would be rendered obsolete through the creation of the four

new entities. More specifically, Čović and Tihić shared the view that this internal

reorganization should also be based on the abolition of RS as it currently stands.

On the other hand, the RS premier Milorad Dodik made clear that the boundaries

of the Serb Entity would never be modified. Dodik later clarified that his support

for the general idea of creating four entities to manage the middle level of

governance was conditional on acceptance by the other two leaders of the right of

RS to secede from the Bosnian state and become independent by popular

referendum, after a ‘probationary’ period of three years within the new state

structure (ICG 2009b: 5).

Only a few weeks following the launch of the Prud initiative, the emergence

of such a substantial disagreement revealed that the process was destined for early

failure. Despite witnessing this stalemate, US and EU diplomats maintained a

belief that an opportunity existed (this time) for joint and coordinated efforts to

promote constitutional improvements in the Bosnian institutional scheme. The

three leaders of the Prud process were hosted in Brussels by Javier Solana for

bilateral meetings at the end of March 2009. Following this initiative, a first

important sign of convergence between the US and EU on the Bosnian dossier

arrived on 20 May 2009, with visits to Sarajevo by both the US Vice-President

Joe Biden70 and the EU High Representative for CFSP Javier Solana.

These visits by the two high-level representatives were intended as a public

diplomacy initiative, in other words, an occasion to demonstrate to Bosnian

politicians that Washington and Brussels were singing from the same hymn sheet.

Biden and Solana also announced unequivocally that they were prepared to devote

a high level of attention to BiH again, in order to facilitate its transatlantic

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integration and, to that end, would work together on joint EU-US initiatives. In

the words of the two leaders, ‘movement on the path to EU and NATO

membership will bring genuine benefits … this will require concerted efforts and

compromise to achieve needed reform, including a functioning BiH constitution.

The United States and the EU will support this process of growth and reform’ (US

Government 2009: emphasis added).

Renewed US activism on the Bosnian dossier had been called for by several

EU member states, especially following the difficulties encountered with regard to

police reform and finalization of the SAA. For example, at the beginning of 2009,

witnessing the initial slow development of the Prud process and the slow pace of

other countries in the region in their respective attempts to get closer to the EU,

Rome-based policy-makers elaborated an eight-point roadmap for the Western

Balkans.

This document, which was presented first at EU level, opened with a short

but significant message to other EU member states: ‘The European Union needs

to send a reassuring message to the Countries of the [Western Balkans] region on

their European perspective, whilst exacting from them a renewed commitment

towards reforms’ (Italian Ministry of Foreign Affairs 2009). Elaborating its eight

policy proposals, Italy stressed that cooperation with the US was of the utmost

importance, especially on the Bosnian dossier. The role of Washington in BiH

was defined as literally ‘crucial’, also with reference to ‘the future international

civil presence based on a reinforced EUSR’ (Italian Ministry of Foreign Affairs

2009: §4). Italy also proposed the organization of a new EU-Western Balkans

Summit in the first half of 2010, ten years after the Zagreb summit, and suggested

that the event should be held ‘with the participation of the US’ (Italian Ministry of

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Foreign Affairs 2009: §8). Moreover, the convergence between Washington and

Brussels was also identified as ‘vital ... to support Kosovo both in terms of direct

commitment on the ground and of financial aid’ (Italian Ministry of Foreign

Affairs 2009: §7).

4.1. US diplomacy focuses again on the Bosnian dossier

The call for renewed American activism on the Bosnian stabilization process did

not pass unheeded. The Biden/Solana declaration of May 2009 was just the

starting point of what could be referred to as a complex process of strategic and

operational ‘recomposition’ between the two sides of the Atlantic. The

rapprochement between Washington and Brussels has taken place via a series of

intense diplomatic and political contacts. In particular, most of the strategic

discussions have taken place within the framework of the ‘Quint’ meetings, thus

confirming the leading role played by a block of key European governments on

the Bosnian dossier. The Western Balkans ‘Quint’ brings together the United

States, France, Germany, Italy, and the United Kingdom.

Two important meetings of the Quint took place following summer 2009.

One was held in Brussels on 17 September; and a second at the level of Political

Directors was organized on the margins of the UN General Assembly in New

York on 22 September. These two meetings served as a crucial point of

confrontation on the following two issues: OHR/EUSR transition and possible

ways of following up on the commitment solemnly announced a few months

earlier by Biden and Solana. The preparatory documents that were exchanged

between US and EU diplomats clearly reveal that in mid-September 2009 the

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strategic concerns of the two sides of the Atlantic were still quite different. An

examination of the organization of a ‘retreat’ for Bosnian political leaders71 in the

Butmir military base (located in the outskirts of Sarajevo) in October 2009

demonstrates that, in the end, the US successfully managed to confirm its

leadership role and promoted its strategic vision which ultimately prevailed over

the more cautious European plans. An analysis of the two main strategic policy

documents that were exchanged by Brussels and Washington leave no grounds for

doubt.

On 16 September the four EU member states represented on the Quint sent

to their US counterpart an articulated series of policy proposals entitled: ‘First

Ideas for a “Package” Solution to the Transition in Bosnia and Herzegovina by the

End of 2009’ (EU 2009). The document was based on the broader discussion held

within the EU framework at COPS level and also included a draft ‘Road-map for

BiH and EU involvement’. The schedule drafted in Brussels encompassed the

possible organization of ‘a retreat of BiH political leaders’ in early October, but it

specified that this exercise should allow Bosnian politicians ‘to consolidate ideas

as their final input’ to the broad package of measures presented by the EU. The

retreat was intended as a lengthy brainstorming exercise and not as an occasion to

exert pressure for a deal on constitutional reform. For its part, the US presented a

non-paper with a more specific focus on constitutional reform. It is revealing that

the document drafted in Washington (in response to the EU proposal) was

entitled: ‘The Why of Constitutional Reform’ (US Department of State 2009).

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4.1.1. The EU’s ‘package solution’ deal

The EU position can be reconstructed by referring to the report jointly presented

by Solana and Olli Rehn to the European Council in November 2008. This

document made a series of suggestions on the priorities that the EU should pursue

in the months to come in its targeted member-statebuilding efforts, without

opening the Pandora’s Box of the constitution. As noted by the High

Representative for CFSP and the then EU Enlargement Commissioner, the time

had come to make ‘active and comprehensive use of all the EU's tools and

mechanisms available: A comprehensive EU approach should mobilise all the

possible EU instruments with consistency and determination’ (EU 2008: 2,

emphasis added).

The formula arrived at by Brussels can be explained in the following terms:

as EU integration was the only macro strategic issue on which different

representatives from the Bosnian political environment could agree, the EU

should launch a renewed (and clear) commitment to the Bosnian stabilization

process; all EU policy-makers were expected to involve key Bosnian elites in the

technical reforms necessary for the future implementation of the SAA. As

explained in the summary note of the Solana/Rehn report (that was only partially

released to the press by the European Council) it should be clear that: ‘EU

integration represents a policy area that all BiH leaders agree on. This gives the

EU unique leverage and responsibility’; in other words, the European Partnership

and the SAA implementation should be the only ‘drivers of reform’ (EU 2008).

The report – which was handed to the Bosnian Prime Minister Nikola Špirić

during an ad hoc ceremony in Sarajevo by the Head of the Commission

Delegation to BiH, Ambassador Dimitris Kourkoulas, and the HR/EUSR

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Miroslav Lajčák (EC Delegation to BiH 2008) – concluded with the following

text, which is indicative of the cautious EU approach to constitutional reform:

Constitutional reform is neither a requirement for OHR closure nor

for BiH's further journey towards the EU. Nevertheless, the

constitutional framework must evolve to ensure effective state

structures capable of delivering on EU integration, including the

requirement to speak with one voice. The EU can support

constitutional reform with expertise and funds, but the process must

be led by BiH itself (EU 2008: 2).

In spite of strong signals from Washington and initiatives by US diplomats

in BiH, a belief that constitutional reform should be marginalized as much as

possible was maintained by the EU up until September 2009. This is confirmed by

the structure and content of the previously mentioned policy paper that

summarized the EU position on BiH prior to the WB Quint meeting of September

2009 in Brussels. The document opened with the acknowledgment that the

‘imperfect Dayton constitution complemented by international oversight and a

degree of international rule ... has clearly reached its limits’ (EU 2009: 1). In

keeping with this pessimistic assessment of the status quo, the EU position

proceeded with the observation that ‘to apply for membership of the EU and

NATO, Bosnia and Herzegovina needs to recover its full sovereignty’ (EU 2009:

1).

Interestingly however, the limited sovereign capacities of the Bosnian

authorities were not linked to the inefficiencies of domestic multiethnic

institutions. No reference was made to the nationalist elites and their prolonged

dispute on the reconfiguration of the Bosnian state. The document elaborated in

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Brussels emphasized mostly the international dimension of the Bosnian

conditional sovereignty, since it presented sovereignty primarily as a matter of

formality: ‘only after a decision has been taken to close the Office of the High

representative and relinquish the Bonn powers can BiH sensibly hand in its

application for EU and NATO membership’. This approach confirms: firstly, the

tendency of EU policy-makers to emphasise formal ownership over actual

sovereign capacities; secondly, the willingness by the EU to prolong its hands-up

statebuilding stance over reconciliation and constitutional reorganization in BiH;

thirdly, the preference for technically-driven change and a step-by-step approach;

and fourthly, the necessity to present Bosnian elites with ‘a package solution ...

combining reforms and incentives’, in which constitutional reform was just one of

a number of issues to be addressed and would therefore continue to be

procrastinated over. In other words, the strategy proposed by the EU indirectly

attached emphasis to the idea that the rehabilitation of the formal Bosnian

sovereignty would be followed by a de facto restoration of sovereignty through

assimilating the country into Euroatlantic supranational structures. As previously

mentioned, the EU has consistently presented supranational integration as a

panacea to the Bosnian domestic sovereignty struggle.

The assessment above finds more explicit confirmation in the

methodological section of the EU policy paper: ‘constitutional reform is not part

of the “5+2”, but needed to improve BiH’s functionality to get closer and to join

Euro-Atlantic structures (EU 2009: 4). Moreover, the document noted that

‘constitutional reform is not a requirement per se, but some constitutional change

will be necessary for full membership (speaking with one voice, prompt

decisions)’ (EU 2009: 5, emphasis added). These two statements provide a useful

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synthesis of the EU’s understanding of constitutional change in BiH. In contrast

with its transatlantic ally, Brussels intends constitutional reform as a progressive

development that follows on from the EU and NATO integration processes and is

functional to the future embedding of the country into the formal and informal

supranational networks determined by membership of these two organizations.

Only a few carefully calibrated steps in the overall process of constitutional

reform were considered feasible by EU policy-makers. These included, first of all,

measures for the harmonization of the Bosnian constitution with the ECHR.

Having a constitutional order that privileges the rights of three constituent people

identified along ethno-religious lines, the Bosnian system is a source of

discrimination against those citizens who belong to minorities that do not fit into

one of these three categories – e.g. Roma, Jewish or, more simply, citizens who

are born of mixed marriages and refuse to identify themselves as members of a

defined ethno-religious community. In addition to alignment of the constitution

with the basic requirements of the ECHR, EU policy-makers also proposed a

revision of the procedures for the election of the BiH Presidency, and an increase

in the number of MPs sitting in the House of Representative. This last measure

should be connected to a broader reform of the cantonal structure within the FBiH

(EU 2009: 4).

4.1.2. The ‘constitution first’ approach proposed by the US

The US opposed the EU strategy. Brussels-based policy-makers had focused on

the promotion of a broad package deal that only marginally touched upon issues

of clear constitutional relevance. Washington’s analysis was instead more firmly

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based on the conclusions of the report of the Venice Commission (2005), which

while providing a detailed analysis of the Dayton institutional order and a

negative assessment of the interferences of the OHR in the political life of the

Bosnian state, also reached a series of interesting conclusions on issues related to

constitutional change in BiH.

Analyzing the complex and precarious Bosnian institutional balances, the

Venice Commission offered the following general policy proposal: ‘Constitutional

reform is indispensable since present arrangements are neither efficient nor

rational and lack democratic content’ (2005: 24-25, emphasis added). The report

went on to propose a re-allocation of the responsibilities of governance from the

Entities to the central state and the undertaking of targeted institutional and

procedural changes with a view to better clarifying the prerogatives of the central

government in its efforts towards integration into EU structures, as well as a

‘streamlining of decision-making procedures’ (Venice Commission 2005: 25).

The beliefs that constitutional reform is indispensable and that further

centralization of the state is equally necessary are the two pillars of the recent US

strategic proposal, which formed the basis of the Butmir process. Elaborating on

‘the why of constitutional reform’, US policy-makers raised three main critiques

of the EU’s cautious approach. Firstly, further recalling the ideas of the Venice

Commission, US analysts reiterated that ‘negotiation of [EU] enlargement would

be impossible without constitutional reform and the transfer of competencies to

the State’ (US Department of State 2009: 1). Secondly, in a more direct critique of

the EU’s member-statebuilding strategy they said: ‘the EU believes the

enlargement process (i.e., use of avis and acquis) will identify legal and

constitutional changes and provide a rationale for constitutional reform as

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enlargement proceeds. It is unclear whether this process will address the specific

structural and institutional changes needed in state government as identified by the

Venice Commission’ (US Department of State 2009: 1). Thirdly, the analysis

described as ‘naive’ the idea that the closure of the OHR would automatically

result in local ownership and a more responsible political attitude on the part of

domestic elites. The assumed correlation between closure of the OHR and an

increase in local ownership was judged to be unrealistic ‘under the current

constitutional arrangement. A more realistic outcome will be the continued

paralysis of the state’ (US Department of State 2009: 1).

The policy prescriptions proposed by the US proceeded with a list of

principles and steps designed to favour the establishment of a framework for

mediated constitutional change. The success of such a process would depend on

the identification of ‘parameters for the negotiations and assure the Serbs that we

are not undertaking a Dayton 2 exercise, while at the same time convincing the

Bosniaks that we are committed to making state institutions more functional’ (US

Department of State 2009: 3-4). In other words, the document went on, ‘we must

convince the Bosniaks that the process will conclude with a more functional state

and convince the Serbs that a state government need not be either unitary or

highly centralized to be functional’ (US Department of State 2009: 5). The most

interesting principle proposed by Washington was to prioritize NATO-friendly

reform (which involves only a few ministers at state level and already enjoys

broad local consensus). The promotion of reform related to BiH’s NATO

accession process was presented as a potential Trojan horse in an effort to break

the political deadlock. If this proved successful, the US argued, it should prove

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possible to build ‘the institutional basis for EU enlargement negotiations’ (US

Department of State 2009: 4).

The urgency demonstrated by the US in pushing for a compromise on

constitutional reform was also connected with two other strategic considerations.

Firstly, the US preferred that such a comprehensive process would be launched on

the first possible occasion following the summer. This would have enabled

agreement on a constitutional deal by the end of 2009 and avoided the negative

pre-electoral climate of the planned October 2010 general elections. Secondly, as

a source from within the EUSR Office has confirmed,72 the plan to intensify

international pressure on Bosnian elites was also connected with a certain

‘ferment’ shared amongst international legal experts working in the country with

regard to the imminent ruling of the Strasbourg-based European Court of Human

Rights (ECtHR) on the case involving ‘Sejdić and Finci v. Bosnia and

Herzegovina’.

The two plaintiffs are Bosnian nationals, who do not belong to any of the

three ‘constituent peoples’ as identified in the Bosnian constitution, since their

ethnicity is respectively Roma and Jewish. Sejdić and Finci challenged the

legitimacy of the Bosnian constitution, which formally recognizes the right to run

for the state Presidency and the House of Peoples only for those citizens who

identify themselves as belonging to one of the three ‘constituent peoples’.

It was most probably not by chance that the Venice Commission published

on the second day of the Butmir retreat an amicus curiae brief on the ‘Sejdić and

Finci case’, which perfectly anticipated the ECtHR final verdict. Using the same

legal basis as the Court, the Venice Commission (2009: §22) made clear that

‘different treatment on the basis of ethnicity can hardly ever be justified’.

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Moreover, the Venice Commission (2009: §34) stressed that the emphasis of the

DPA constitution on the constituent people is overly complex, since it effects

citizens belonging to other nationalities, but also those who cannot identify

themselves as members of one ethnic group or another: ‘the “Others” in Bosnia-

Herzegovina comprise not only persons who, like the plaintiffs, consider

themselves to belong to a specific group (Jews or Roma); they also comprise

anyone (including people in ethnically mixed marriages) who refuses to define

him or herself as belonging to one of the constituent peoples.

The Grand Chamber of the Court issued its judgement on 22 December

2009. The ECtHR acknowledged that the balance among the three constituent

people established under the DPA was appropriate in 1995, in consideration of the

urgent necessity at that time to reach a compromise between the three ethno

religious factions previously at war (ECtHR 2009).73 However, observing

‘significant positive developments in Bosnia and Herzegovina since the Dayton

Peace Agreement’ the Court also recognized that ‘the applicants' continued

ineligibility to stand for election to the House of Peoples of Bosnia and

Herzegovina lacks an objective and reasonable justification’ (ECtHR 2009: §47,

§50).

To understand the potential impact of this judgment, it might be useful to

refer – paradoxically though it may seem – to the statement of the dissenting

Maltese Judge Giovanni Bonello, who posed a question of competence: ‘does it

fall within this Court's remit to behave as the uninvited guest in peace-keeping

multilateral exercises and treaties that have already been signed, ratified and

executed?’ (ECtHR 2009: 34). According to Bonello, the ruling had too brusquely

divorced Bosnia and Herzegovina from the realities of its own recent past’

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(ECtHR 2009: 33). Confirming its prudent approach to constitutional reform, in

September 2009 the EU narrowly linked the ‘Sejdić and Finci case’ to the

question of discrimination in the Bosnian constitution (EU 2009: 4).

4.2. Joint EU/US pressure and the constitutional project

presented at the ‘Butmir retreat’ (October 2009)

As previously mentioned, in summer 2009 the EU presented a project that

proposed different priorities, approach, and methodology if compared with what

the US identified as the steps necessary to produce extensive constitutional change

in BiH. Nonetheless, when proposing its own ‘package solution approach’, the EU

clarified that the main expectation for the weeks to come would be an intensified

operational transatlantic cooperation. Brussels expressed the hope that the

political platform on which Bosnian elites would be working to consolidate their

Euro-Atlantic perspective could be structured on a ‘joint EU-US approach,

endorsed at political level on both sides’ (EU 2009: 1).

Amongst other interesting methodological recommendations, Brussels

emphasized the need to develop actions that should be ‘clearly explained’ as well

as ‘capitals driven’. The first formula encompassed the hope that both the EU and

the US would ‘take responsibility for ensuring proper public communication, as

well as ensuring proper information and understanding in the IC in Sarajevo’ (EU

2009: 2). Even more interestingly, Brussels expressed the hope that renewed EU-

US cooperation would be established at the level of capitals and that these would

remain the main strategic and coordination centers for reform initiatives promoted

in BiH. The specific formula coined in Brussels was: ‘the EU and US will need to

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be in the driving seat; Sarajevo (OHR) should support, but not drive the process’

(EU 2009: 2).

When the Butmir process was launched (20 October 2009), the exercise was

co-chaired by the Swedish Foreign Minister and former HR in BiH, Carl Bildt74

and the US Deputy SoS James Steinberg. The ICG labeled the meeting as ‘an

emergency attempt to push through reform’ (ICG 2009a: 4, emphasis added).

Using a similar tone, when news of the preparatory meetings for the Butmir

exercise were made public, the international press defined the US-EU

convergence as a ‘last-ditch effort to drag Bosnia out of the mire’ (McLaughlin

2009). The EU high-level participation was reinforced soon after the introductory

sessions, when the EU Enlargement Commissioner Olli Rehn joined the meeting.

However, it soon became clear that the American methodological approach was

going to take precedence: Bosnian leaders were gathered in the military base to be

confronted with the broad issue of constitutional change and the reconfiguration

of sovereignty in the country, in order to finally move it beyond the Dayton

implementation phase towards a concrete and speedy process of transatlantic

integration. At the same time, the two specific methodological indicators proposed

by the EU were accepted. A degree of public diplomacy was pursued and the

ambition of a ‘capitals-driven’ process was respected, via a certain

marginalization of the OHR from the main stage of the talks.

To further confirm the predominance of the US-sponsored objectives, it

can be noted that a few sections of the document presented at the Butmir meeting

recall the constitutional charter through which Kosovo became independent from

Serbia in February 2008 (Assembly of Kosovo 2008). In the document issued by

the Kosovo Assembly there are many references to Euroatlantic integration, so

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that the charter emerged almost as the formalizing act of a silent shared-

sovereignty agreement – mainly between Kosovo and the EU – rather than a

classic declaration of independence.

In one move, Pristina dismissed UNMIK, erected a wall with Serbia, and

tried to jump into the arms of the EU. Having expressed their gratitude to the UN

for both its post-conflict peacekeeping efforts and prolonged administrative

activities (§ 7), the members of the Kosovo Assembly went on to ‘invite and

welcome’ the international civilian presence and the EU rule-of-law mission (§ 5).

Furthermore, the Kosovar representatives solemnly announced: ‘for reasons of

culture, geography and history, we believe our future lies with the European

family. We therefore declare our intention to take all steps necessary to facilitate

full membership in the European Union as soon as feasible and implement the

reforms required for European and Euro-Atlantic integration’ (§ 6).

Similar to the text that forms the basis of Kosovo’s independence

declaration, the Butmir draft (Anon 2009: 5) included a section (6) on the relations

between the Bosnian state and relevant international organizations. The section

opens with a paragraph specifying that accession to international organizations is a

prerogative of the central Bosnian state. Specifically, the paragraph makes clear

that: ‘Bosnia and Herzegovina shall have the responsibility for applying to

membership in International Organizations and to conclude treaties … To that end

it may transfer sovereign powers to such organizations’ (§ 6a). The exclusive

responsibility of the central level of governance to conduct the negotiations for EU

accession was also specified: ‘Bosnia and Herzegovina shall have the

responsibility to conclude agreements with the European Union and to undertake

legal and political commitments required for the process of accession to the

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European Union, including on matters that in accordance with other provisions of

this Constitution are the responsibility of the Entities’ (§ 6a, emphasis added).

4.2.1. Criticism from Washington

On the other side of the Atlantic, neo-conservatives did not welcome the efforts of

the Obama administration to resume activity on the Bosnian dossier. For instance,

Bob Dole criticized the US government for resuming its efforts in BiH under the

shadow of the EU. In the opinion of the former majority leader in the US Senate,

the reform plan that was proposed at the ‘Butmir retreat’ was not the most

appropriate solution for the country: ‘Bosnia is again under threat. This time the

threat is not from the brutality and immediacy of genocide. Rather, it is a more

subtle menace: the prospect of a state weakened to the extent that it dissolves;

leaves its people in separatist, monoethnic conclaves; loses all hope for

democratic development; and validates ultranationalism’ (Dole 2009).

When rumors began to spread of the imminence of a broad high-level

multilateral effort aimed at breaking the Bosnian constitutional deadlock, another

interesting critique of the Butmir exercise was launched by USIP by James C.

O'Brian – an American lawyer with considerable experiences of constitutional

issues in the Western Balkans, having served as a former Special Presidential

Envoy for the Balkans and Senior Advisor to SoS Albright. In this capacity, he

also gave a direct contribution to the negotiations on the Bosnian constitution that

was included in the DPA, assisting in the drafting exercise that was coordinated by

Paul Szasz.75

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O'Brian (2009) proposed a ‘new agenda’ for the international commitment

to BiH, with a series of interesting and concrete methodological proposals. Some

of these represented a kind of ‘preliminary’ warning against the upcoming high-

level international effort in Butmir. In general, O'Brian (2009: 1) criticized the

tendency of the international community to press for ‘big initiatives’ that tend to

promote a framework institutional solution to complex processes. Building on this

critique, he proposed the development of a new gradual approach to reform,

mostly led by EU bureaucracies, which should be authorized to ‘pick many, many

little fights’ with the elites ruling in BiH. At the same time, he expressly invited

both EU and US policy-makers to avoid complex and structured efforts for the

imposition of constitutional change en bloc: ‘Constitutional reform is not

necessary. It can certainly improve Bosnia’s governance structures and so should

not be discouraged. As long as it is negotiated with leaders who benefit from the

current system, however, it will not be enough’ (O'Brian 2009: 4).

It is interesting that such a call for gradualism comes from a legal expert

that in the past has often participated in international teams that drafted

constitutions for post-conflict societies (apart from BiH in 1995, O'Brian played

also an advisory role in the preparation of the constitution adopted by the Kosovo

Assembly on 17 February 2008). To some extent, however, at the core of

O'Brian’s new policy plan for reform in BiH there is the idea that the European

membership perspective should be exploited in a more concerted way. On the one

hand, O'Brian invites EU policy-makers to ‘be themselves’ and engage Bosnian

elites in their responsibilities related to the SAA process. On the other hand, he

encourages US diplomacy to accept that the negative cycle that is currently

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dragging down the political and institutional life in BiH will not be broken

overnight with an agreement on the constitution.

Because the Dayton agreement defines each constituency in ethnic or

national terms, the result is a self-reinforcing cycle: politicians

reward their voters for approving ethnic appeals, and voters naturally

seek more rewards by approving the politicians who make those

appeals. As long as this cycle continues, no policy prescription can

make the popular parties less nationalistic, or the less nationalistic

parties more popular (O'Brian 2009: 2).

This appears to be an accurate analysis of the current stalemate. Further

developing on O'Brian’s ideas, it can be added that the tendency of US diplomacy

to identify externally facilitated constitutional changes and negotiate their

approval en bloc with key local leaders does not reflect the constitutional tradition

of the United States. Constitutional history shows that changes in the founding

rules in the American order are for the most part elaborated following macro

societal or political developments which are then consolidated in praxis.

Moreover, history confirms that macro developments in the community, whether

they are relevant for the whole body politic or merely for state institutions, are

usually followed only by small amendments to the basic ‘rules of the game’,

which are carefully calibrated by the legislator. To be sure, the Bosnian experience

can hardly be compared with other constitutional orders. Amongst other reasons,

the most relevant is that the text included in the DPA was not the outcome of a

structured process of reconciliation, but it was a construction of necessity that

aimed to impose as many checks and balances as possible between the constituent

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peoples previously at war. The DPA remains an internationally established

constitutional order.

4.2.2. Criticism from Europe

Criticism of the modus operandi of the Butmir retreat also came from three former

HR/EUSRs. Lord Paddy Ashdown, Wolfgang Petritsch and Christian Schwarz-

Schilling issued a public statement in which they offered a ‘methodological’

critique of the joint EU/US efforts for constitutional development in BiH.

The most relevant critique proposed by the trio of former international

envoys to BiH concerns the limited involvement of the HR/EUSR in the process:

‘the way the Butmir initiative has been prepared has imperiled the international

community’s and the future European Union Special Representative’s authority

and integrity. It is imperative to integrate the High Representative into the process

to allow for a proper and dignified conclusion of the peace implementation

process and the opening of a new chapter’ (as quoted in Latal 2009). Furthermore,

the three former heads of the OHR/EUSR questioned the absence of an open and

more structured process of confrontation:

The West should try new approach…The talks this week must pave

the way for a sustainable constitutional reform process anchored in

the institutions and civil society of Bosnia and Herzegovina and

supported by the European Union and the Council of Europe … In

close cooperation with the United States, Europe should provide

financial, structural and organisational support to facilitate a final,

effective reform process (as quoted in Latal 2009).

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Finally, the three former HR/EUSRs advocated for the maintenance of

some form of external ‘power to internationally guarantee Bosnia and

Herzegovina’s peace and stability; also after the closure of the Office of the High

Representative’ (as quoted in Latal 2009). The reference to the term ‘power’

indirectly evokes one of the most critical issues related to the transition away from

the OHR and towards the creation of a ‘reinforced’ EUSR: what will happen to the

Bonn Powers? When in 2007 the EU Council started to debate the future of the

EUSR office after the closure of the OHR, little attention was paid to the Bonn

Powers. To some extent, the Bonn Powers were not even an issue. The closure of

the OHR was actually evoked as a step that could have allowed, on the one hand,

the end of an era of excessive international interference in Bosnian political and

legislative life and the inauguration of the ‘era of Brussels’ on the other. As the

experience of the Slovak HR/EUSR Miroslav Lajčák demonstrated, between 2007

and 2008 the Bonn Powers were still a useful tool for the international community,

especially in consideration of the tough confrontation that the police reform

process entailed between EU representatives on the one side, and local Bosnian

politicians trapped in their traditional nationalist rhetoric on the other.

Rumors from the EUSR offices have confirmed that in the aftermath of

Lajčák’s tenure, even EU countries started to debate whether or not the Bonn

prerogatives should be preserved. One of the proposals considered by the

European Council hinted at the hypothesis that Spain could inherit the Bonn

Powers. In 1997, these powers were assigned by the PIC with a formula ad

personam to the Spanish diplomat Carlos Westendorp, who headed the OHR from

June 1997 until July 1999.

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The recent decision adopted by HR/EUSR Valentin Inzko, which amended

the statute of the city of Mostar including the procedure for the election of the

mayor, has demonstrated that there are still issues in BiH that the international

community tends to resolve by imposing solutions through the Bonn Powers

(OHR 2009b). However, the attention that is still paid to the future of the Bonn

Powers is mostly related to the possible removal of politicians who are judged to

be guilty of obstructing the DPA implementation process. More precisely, the

cautiousness of several EU member states in considering the Bonn Powers as ‘out

of date’ stems from the ongoing showdown between the RS Prime Minister

Milorad Dodik and the HR/EUSR.

4.3. The Russian non-variable

While Brussels and Washington tried to steer political confrontation in BiH

towards the constructive acceptance of a new constitutional compromise, Moscow

adopted extreme caution. When the Butmir retreat began, the Russian Ambassador

in Sarajevo, Alexander Botsan-Kharchenko, distanced himself from the exercise.

Firstly, he suggested to RS media representatives that ‘the time is not right to

agree on a reform of the DPA’ (as quoted in Vukicevic 2009a: my translation).

Secondly, Botsan-Kharchenko stressed that Russia had no role in the preparation

of the event and would not be involved in the discussions taking place at the

international military base: the initiative ‘seeks to accelerate the convergence of

the Bosnian state towards Euroatlantic institutions; since Russia is not a member

of those institutions we are not involved in the realization of the initiative, but we

monitor what is happening’ (as quoted in Vukicevic 2009b: my translation).

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Moreover, Botsan-Kharchenko – who prior to his arrival in Sarajevo

served as Russia's special envoy for Kosovo76 – renewed the Russian appeal in

favor of the closure of the OHR and the definitive abolition of the Bonn Powers:

‘the interferences of Bonn must be frozen from now until the definitive disclosure

of the OHR. After that, any set of power of such kind shall not exist anymore’ (as

quoted in Vukicevic 2009a: my translation). Interestingly, an analyst on the

ground has pointed out that the visit of the Russian President Dimitry Medvedev

to Belgrade almost at the same time as the Butmir exercise got underway

indirectly compromised the success of the talks even before they began. Milorad

Dodik was apparently heading to Belgrade to meet with Medvedev, when he

should have been participating in the US/EU initiative in Butmir (Alic 2009).

The absence of Russia from the negotiation table in Butmir came as no

surprise. Over the past few years, Moscow has been a consistently staunch

supporter of the key policy developments demanded by the Bosnian Serb

leadership, which include: the immediate closure of the OHR and the related

abolition of the Bonn Powers; the consolidation of the central Bosnian state

institutions without further formal changes to the main pillars of the current

architecture; and the maintenance of the entities as middle-level of governance.

Historically, Russia has always been a supporter of the Serb community in

BiH. Russian investments in RS are already a clear sign that Moscow is ready to

support the financial stabilization of Banja Luka (cf. section 4.2. in Chapter V).

However, it has been only since 2009 that Russia started to adopt a more active

attitude on the PIC. This, to some extent, formalized its disengagement from

confrontation with the rest of the international community and the RS premier

Milorad Dodik. Back in mid-May 2009, the Russian head of mission in Sarajevo

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refused to support its colleagues on the adoption of an important communiqué,

prepared by the PIC-SB Political Directors to condemn the RS government for its

reiterated public challenges to the DPA.

The intense showdown on police reform between HR/EUSR Miroslav

Lajčák and the RS Prime Minister Milorad Dodik, which started during summer

2007, came to an end with the beginning of the Mostar process for police reform

in December 2007. From that moment, the relationship between Banja Luka and

the OHR seemed to have arrived at a ceasefire. The first months of the new

Austrian HR/EUSR Valentin Inzko seemed relatively calm on the RS front. A new

season of tensions between Dodik and the international community was

nevertheless very close at hand. The apparent calm was interrupted abruptly on 14

May 2009, when the RS National Assembly (RSNA) adopted a document

challenging 68 competences that, in the course of the previous years, were

transferred from the entities to the central level of governance. The RSNA labeled

this transfer of competences as an illegal acquisition by the central government

and also called on all Bosnian Serb representatives sitting in the government in

Sarajevo to help the transfer of those prerogatives back to the institutions in Banja

Luka.

The document adopted by the RSNA was somehow indirectly

preannounced at the beginning of the year by Dodik himself. Interviewed by the

RS-based newspaper Večernje novosti in early 2009, he made clear that the season

of transfer of powers from the entities to the national government was considered

to be closed by the leadership in Banja Luka: ‘Before me, RS was like a store –

you came in and took what you wanted. Only different to a store, you didn’t have

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to pay for anything. It will never be like that again’ (as quoted in Vujanović 2009).

Further to that, Dodik polemically argued:

The International Community has made an enormous mistake by not

implementing Dayton but the «spirit of Dayton». And once they

released the spirit and started chasing it across BiH, we all knew

what the only ending could be. Such that we are now going to ask for

the competencies taken away from us to be returned. This will be the

basis of our concept in the process of constitutional changes. Nobody

should have any doubts about us achieving that. Be assured – RS will

not lose one single competency more … We have not received yet

the 49 percent of the territory as belongs to us according to Dayton.

We are going to request that our territory is returned. We are not

interested in the stories that it is all Bosnia and it is all ours. No! I am

only interested in RS, and others should make their own agreements.

(as quoted in Vujanović 2009: emphasis added).

In spite of the pressures made by HR/EUSR Inzko, on 15 June 2009 the

RSNA authorized the publication of this controversial document on the pages of

the RS Official Gazette. Witnessing this development, the PIC-SB reacted with a

strong condemnation, in which the attitude of RS leader was defined as an attack

against the constitutional stability of the whole country:

The PIC Steering Board expressed its concern about recent political

developments in BiH, not least the adoption of the Conclusions on

14 May by the Republika Srpska National Assembly. Statements and

actions challenging the sovereignty and constitutional order of BiH,

as well as attempts to roll back previously agreed reforms and to

weaken existing state level institutions display open disrespect for

the fundamental principles of the GFAP, are unacceptable and have

to stop. These actions also run counter to the GFAP and the long-

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established efforts of the PIC Steering Board to support state

building. Actions such as these will be taken into account when

assessing the second condition set by the PIC Steering Board for

OHR-EUSR transition, which is a positive assessment of the

situation in BiH by the PIC Steering Board based on full compliance

with the Dayton Peace Agreement (PIC-SB 2009a: emphasis added).

The most interesting aspect of this statement was that PIC-SB Political

Directors were forced to mark the paragraph against the RSNA document with the

following clarification: ‘the delegation of the Russian Federation could not join

with the rest of the PIC’ (PIC-SB 2009a). By taking distance from its colleagues

on such an evident provocation, the head of Russian diplomacy in Sarajevo made

clear how far is Moscow from the Western members of the PIC-SB when it comes

to assessing the political decisions adopted by the RS leadership.

Following the summer break, in the proximity of the Butmir retreat, the

confrontation between Dodik and the international community restarted on the

same track. Once again, Russia confirmed its disengagement, thus providing

indirect support to the Bosnian Serb leader. After the RSNA document on the

reacquisition of competences by the Serb Entity, a new formal direct attack was

brought against the OHR and the Bonn Powers. On 24 September 2009 in the

document highlighting the RS government conclusions of the 124th session held in

Banja Luka, it was stated that all the decisions adopted by the HR in the use of the

Bonn Powers would no longer apply on the territory of RS. As confirmed on the

pages of the Southeast European Times, this document was a challenge to the

intervention by HR/EUSR Inzko in the governance of the national electric

company Elektropenos (Associated Press 2009). Welcoming the adoption of this

act, Dodik tried to argue for its legitimacy by telling the international press that,

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after all, the OHR has run the country for too long as ‘an undeclared protectorate’

thus turning it into an ‘imprisoned state’ (Itano 2009).

The reaction by the PIC-SB was prompt and resolute. However, also in this

circumstance the statement issued by the PIC-SB Ambassadors was not adopted

with unanimous support. The text criticized the RS government, responsible for a

‘downward spiral in political relations and challenges to the GFAP’ (PIC-SB

2009b). In spite of the relatively ‘soft’ term of this condemnation, Russia

nevertheless withdrew its support. As a counter reaction – probably reinvigorated

by the renewed division in the PIC-SB – on 28 September 2009 Prime Minister

Dodik published on the RS-based newspaper Glas Srpske a very strong editorial.

Even if the focus of Dodik’s criticism in this article were Bosniak leaders, in

particular Tihić, Silajdžić, and Lagumdžija that he depicted as ‘still dreaming

hysteric dreams about a unitary BiH’ (Dodik 2009b: 2), the attacks from Banja

Luka also targeted the OHR and ‘some’ members of the PIC-SB.

Refraining from the adoption of any sort of diplomatic language, Dodik

reiterated his systematic accusations against the work of the OHR, directly

responsible, in his opinion, for repeated breaches of the balances created with the

DPA and for contributing actively to the ‘efforts to build a national state of

Bosniaks, based on the idea of reis-ul-ulema’ (Dodik 2009b: 1). The

internationally-sponsored centralization effort were labeled as an attempt ‘to

convert all to Bosniak terms under the pretext of a civil state, universal rights,

election by simple majority of votes’ (Dodik 2009b: 2). Finally, the RS premier

launched an attack on some members of the diplomatic community in Sarajevo,

reminding them that while RS has developed as an efficient sub-national unit, its

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leadership has been the object of an unjustified attack by the international

community for being in breach of the DPA:

Republika Srpska has accomplished that unity in the last couple of

years with determination to keep on complying with the Dayton

Agreement. However, that sort of commitment to the Dayton is

proclaimed as the Anti-Dayton. That Bosniaks’ Goebbels-like parrot

chorus, assisted by some ambassadors, by which they violate

diplomatic conventions and international law because they act as if

the Bosniaks and not the state of BiH, in which do not live only

Bosniaks, approved their letters of credit (Dodik 2009b: 2).

Only a few days before, another ‘loud’ attack was brought by Dodik on the

international press. This time, the RS Prime Minister chose the pages of The New

York Times. On 18 September 2009, Dodik wrote an open letter in response to a

previous editorial earlier appeared on the same newspaper, in which strong claims

were made on the concrete chances that ‘Bosnia could well return to violence’, as

well as on the fear that a rebound of violence in the country can have possible

destabilizing impact on the entire Western Balkans: ‘Renewed fighting in Bosnia

may not launch World War III, but it could well spread to other parts of the former

Yugoslavia, including Kosovo’ (Kulish 2009).

The article on The New York Times followed another worrisome analysis

made on the British newspaper The Independent, where BiH was defined as a

country ‘back on the brink of ethnic conflict’ (Morris 2009). More or less in the

same days, in a more extensive – but equally pessimistic – analysis published on

Foreign Affairs, BiH was labeled as a state ‘drifting towards chaos’, which was

close to ‘not remain peaceful for long’ (McMahon and Western 2009: 72, 70).

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Moreover – as this recent article on Foreign Affairs has warned – it is historically

proven that the victory of chaos in BiH tends to have negative destabilizing effect

in the wider Western Balkans region: ‘if twentieth-century history is any guide,

conflicts that begin in Bosnia rarely remain isolated within its borders’ (McMahon

and Western 2009: 70). While stressing that BiH is actually a country ‘at peace’,

Dodik took the chance to make clear that Bosnian Serbs ‘do not support the

centralized model that some in the international community have sought to impose

on Bosnia and Herzegovina’ (Dodik 2009a: emphasis added).

5. Conclusions

Academics and observers generally agree that international statebuilding projects

create an inevitable sovereignty paradox: external actors compromise crucial

aspects of sovereignty in the interest of granting domestic political authorities the

full exercise of their legitimate prerogatives. The understanding of sovereignty as

an internationally-shared responsibility has been identified as the normative basis

on which statebuilding initiatives can be justified; this vision would hold in nuce

the pillars that constitute the ‘ethics’ of contemporary peace and statebuilding.

This claim has rarely been followed by attentive analysis of the interactions

between international officials involved in statebuilding missions and local elites,

in order to determine if different actors concretely share the responsibilities of

stabilizations. Moreover, what has quite been overlooked in the literature is that,

in cases like BiH, the EU also complicates the sovereignty paradox for structural

reasons. A post-nation state organization that prepares target states for

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membership, the EU monitors and facilitates institutional reorganization in view

of integration; thus, while preventing the dispersion of sovereignty and reining in

centripetal forces thanks to the prospect of membership, it seeks to prepare

autochthon institutions to give up sovereign prerogatives when the time to join the

Union arrives.

Analyzing political confrontation on constitutional reform, this chapter

explored the normative approach to sovereignty and the diplomatic choices that

have characterized EU-driven statebuilding in BiH. Keeping a focus on the

specific issue of responsibility, the chapter has shown that in the parallel

implementation of its statebuilding and enlargement agendas, the EU reproduces

some of the peculiarities of a neo-medieval empire that puts peripheral units on

the way to full membership. In other words, Brussels considers inclusion and

participation in its formal and informal networks as definitive indicators of

stability and rehabilitation. The interference created by EU-driven statebuilding

cannot be thus justified simply by the goal of establishing the Bosnian authorities’

full and legitimate exercise of empirical statehood.

Thanks to the analysis of official documents and extensive interviews with

participants and observers to the EU-decision making process, it has been clarified

that EU interference on the ground can be traced back to the conviction that the

various internal fractures and wounds of the Bosnian multiethnic experiment will

be healed only when the country’s sovereignty is diluted, partially dispersed, and

‘domesticated’ by the greater European integration machine. In comparative

perspective, the trajectory of sovereignty in what has been referred to as ‘EU-

driven statebuilding’ or ‘EU’s member-statebuilding’ is substantially different

from that determined by UN-led operations of a similar kind. The EU does not

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compromise self-governance with the aim of fully restoring the empirical

statehood of the fragile South-Eastern European states; rather, it approaches its

mission with a more sophisticated mindset and a self-serving goal that is, as said,

to train political elites and civil servants from the target states for EU

membership.

By studying the specific attitude of the EU vis-à-vis the Bosnian

constitution-making process, light has been shed on the EU’s peculiar ‘hands-up

statebuilding’ stance. The ambiguity of raising up one’s hands (a gesture used to

indicate that ‘it’s not my responsibility’) when called upon to take direct

responsibility for political reconciliation and constitutional reform is emblematic

of Brussels’ difficulty in solving two crucial operational dilemmas: the dilemma

of bottom-up vs. top-down statebuilding, and the conflict between technical

assistance and complex post-war stabilization. Moreover, this particular stance

has enabled the EU to escape for quite some time a more open confrontation with

the residual statebuilding influence of the US in the Bosnian project.

The next chapter will analyze the ‘troubled life’ of the EU conditionality

over the Bosnian police reform, with the aim to explain first the ideological nature

of its conception and, second, its prolonged negative impact on the Bosnian

political environment, which eventually induced the EU to push such

conditionality slowly on the margin of the negotiation table. Also the analysis of

police reform will provide evidence that Brussels has thus far not been able to

resolve the crucial operational dilemmas that international statebuilding agencies

are bound to face in their field activities.

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(Chapter IV)

A Story of Subverted Conditionality?

The EU-Sponsored Police Reform

1. Introduction

The story of the EU-sponsored police reform in BiH represents an interesting

case of mismanaged conditionality. The link between police reform and the EU

accession process was promoted by Lord Paddy Ashdown in 2004, during his

second year as ‘double-hatted’ HR/EUSR. In 2005, the EU clarified that this

reform was a priority criteria for the opening of the SAA negotiations with BiH.

In the early stages of the reform talks, an agreement between the three Bosnian

ethno-religious groups on the reconfiguration of policing was almost reached. At

the same time, the Bosnian negotiating team for the SAA was assembled and

started a successful confrontation with the EU Commission.77

However, hopes for a fast-track deal on police reform soon faded and the

initial apparent willingness to cooperate gave way to exasperated logics of

relative gains. Following the general elections of October 2006, which registered

the defeat of all the old nationalist parties, the new German HR/EUSR Christian

Schwarz-Schilling tried to exploit the momentum and negotiate a framework for

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general constitutional reform, thus marginalizing in most of his diplomatic

initiatives the talks for the reorganization of the police. As the previous chapter

has shown, this choice was not supported with sufficient cohesion from Brussels

and Schwarz-Schilling was thus induced to resign from his post even before the

scheduled conclusion of his mandate.

The EU found renewed cohesion in July 2007 with the arrival of the

Slovak HR/EUSR Miroslav Lajčák, who focused again on the reorganization of

the Bosnian police as to a top priority. Since his first weeks in Sarajevo, Lajčák

reiterated with unprecedented emphasis the connection between such reform and

the European destiny of BiH. The link between police reform and progress on

the SAA actually led the country to experience one of the most severe crises of

its post-Dayton history. In danger of compromising the credibility of the whole

European integration project, at the end of 2007 the EU decided to cease

confrontation with domestic elites and watered down the most critical elements

of its requests. Brussels thus enabled local politicians to perform a ‘conquest’ of

the reform agenda. So long as domestic interlocutors demonstrated enough

activism and goodwill (e.g. by organising a series of meetings among their

leaders, who signed a plan of action and agreed on a vague timetable for reform)

the EU turned a blind eye to its conditionality and rewarded them by allowing

the initialling of the long-awaited SAA in December 2007. Only six months

later, the green light was also given to the final signature of the SAA.

The following pages reconstruct the key politico-diplomatic dynamics

related to the reform of the Bosnian police, from the initial efforts of HR/EUSR

Paddy Ashdown to the SAA signature in June 2008. The main goal of this

analysis is to shed light on what can be addressed as the other side of the

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problematic ‘responsibility coin’ of external statebuilding. The previous

reconstruction of the EU’s reluctance to undertake concrete initiatives with

regards to the Bosnian constitutional reform represents only one aspect of the

‘troubled’ relationship that Brussels has developed vis-à-vis its political

responsibilities in BiH. The tendency to step back when called upon to take

direct responsibility for political reconciliation and constitutional reform

revealed only one critical side of the EU commitment to the stabilization of BiH.

The way in which the conditionality over the Bosnian police reform was

launched, sustained, and eventually obfuscated from the negotiation table by the

EU, reflects the tendency, typical of multilateral institutions operating in crisis

areas, to defend their ‘no mistake policy’.

2. The sovereignty struggle through the police reform

The statebuilding of BiH has been hinged for almost ten years around the EU

prospect of membership. BiH was recognized the status of ‘potential candidate

member’ in November 2000 at the EU Zagreb Summit, together with other four

countries of the Western Balkans (namely Albania, the former Yugoslav

Republic of Macedonia, Croatia and the then Federal Republic of Yugoslavia).78

In spite of the decade-long commitment on the part of Brussels, the externally-

facilitated construction of a functional and ‘EU-feasible’ state has reached a

point of dangerous stalemate. Witnessing a prolonged political stall, the re-

emergence of a nationalist rhetoric, and the lack of any serious institutional

development, during his last months of tenure the HR/EUSR Miroslav Lajčák

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essentially invited to reconsider the feasibility of the whole Bosnian multi-ethnic

project. At a press conference in October 2008, the Slovak diplomat laconically

admitted that ‘the concept of a multi-ethnic BiH state is difficult to achieve,

although it has not yet failed’ (as quoted in Anon 2007).

In spite of such skepticism, the EU remains the only possible ‘magnetic

centre’ for the long term normalization of BiH, a role that cannot be dismissed by

Brussels, especially after the gradual operational disengagement of the US from

SEE and the solemn promise made by the EU at the Thessaloniki Summit in June

2003. The prospect of EU membership remains a powerful tool of indirect

stabilization, which has registered some clear successes – by pulling, for instance,

the incredibly rapid economic recovery and democratic stabilization of Croatia –

and that has been put at work for the whole Western Balkans, Serbia included.

However, it seems that in BiH the promise of prosperity in a peaceful

Europe alone does not stimulate a constructive debate among different ethno-

religious political factions on how to put in place the substantial institutional

ameliorations that would bring Sarajevo closer to Brussels. The EU-dream has

bridled the most critical centripetal forces of the Bosnian political environment

but – since it has not been backed by an active strategy for socio-political

reconciliation – it could not heal all the wounds and sources of friction that

characterize the ‘multilevel’ sovereignty struggle between Muslim Bosniaks,

Catholic Croats, and Orthodox Serbs. The confrontation between these three

ethno-religious groups ranges from the central state to the cantons (in the FBiH),

and then down to municipal level.

Commenting on this prolonged stall – amongst many other voices of

concern that have been raised in the last months – Christopher Patten and Paddy

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Ashdown have depicted BiH as the less receptive reality among the newly

independent states from SEE that are standing in line at the EU’s doorstep. In a

commentary published by European Voice on 26 March 2009 (the day of the

official handover between Miroslav Lajčák and the new HR/EUSR, the Austrian

diplomat Valentin Inzko), the former European Commissioner for External

Relations warned that BiH is still very far from being ready to be promoted from

its protectorate status. In addition, with unequivocal terms, Patten has called on

the EU for a renewal of ‘the threat of strong action’. To his eyes, the stick rather

than the carrot represents the only possible mean to ‘convince’ Bosnian political

leaders that they must always demonstrate, in their daily activities, a genuine

commitment to a multiethnic state (Patten 2009). Only a few months earlier, with

similar expressions, Lord Paddy Ashdown launched a very strong ‘wake-up call’

for the EU from the pages of The Observer. According to the analysis of the most

active among all the HRs that have served in Sarajevo, ‘Brussels must toughen up

its conditionality, support its instruments on the ground, resist attempts to

undermine the Bosnian state, insist on constitutional reform to make Bosnia more

functional and tackle corruption which is becoming ever more embedded’

(Ashdown 2008).

It is particularly significant that these two European high-profile

politicians – both very experienced on the political dynamics of BiH – have called

for a strengthening of European conditionality. Their converging policy proposals

are even more striking if we take into consideration the recent story of police

reform: the most critical conditionality thus far imposed from Brussels.

Apparently closed with the initialing of the SAA in December 2007

between the Bosnian government and the EU Commission, the stall that affected

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the negotiations on the reform of the Bosnian police had lasted almost for three

years. As early as 2005, the Bosnian rapprochement with Brussels was bridled by

the choice of the EU to incorporate the reform of the police in the pre-SAA

conditionality package. Brussels made clear that a set of basic conditions had to

be fulfilled in order to allow BiH moving forward on the SAP: improved co-

operation with the ICTY, reform of public broadcasting, a substantial

restructuring of the public administration, and a reorganization of police forces.

The inability of local politicians to agree on the main pillars of this last

institutional development caused the paralysis of the European integration process

for BiH. More precisely, the incapacity of domestic actors to agree on a reform

that would satisfy the EU requests for change became so critical to affect the

functionality of all multiethnic institutions. As the last section of this chapter will

demonstrate, this paralysis induced the HR/EUSR to a renewed use of the Bonn

Powers, which proved again the ineluctable protectorate status of the country.

However, in spite of three years of sterile negotiations, Brussels ended up

demonstrating an unprecedented benevolence towards Sarajevo and turned a blind

eye on all of the most demanding requirements previously attached to the police

reform. As a proof of such generosity, in June 2008 (only six months after its

technical initialing) the SAA could thus be finalized. The signing of this crucial

agreement was granted without a comprehensive reorganization of the police, but

on the basis of some minor adjustments encompassed in highly technical laws of

dubious impact. Precisely, two legislative measures on the field of policing were

adopted by the Bosnian Parliament in April 2008. Several voices of criticism

righteously argued that these last legislative measures have actually increased

complexity rather than improved the overall efficiency of policing in the country.

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Against this articulated backdrop, it is clear that the EU’s conditionality

management on police reform offers a unique case study. Thus far, the academic

literature and policy analysis have mostly focused on the very technical and

security-related aspects of police reform (ICG 2005) and, even more

predominantly, on the operational challenges faced by EUPM, the ESDP

Mission installed by the EU in BiH (Nowak 2003; Merlingen 2005a; 2005b;

Wisler 2005; Penksa 2006; Wisler 2007). Only sporadically (Eralp 2007;

Muehlmann 2007) attention has been paid to the specific political and diplomatic

dynamics that have characterized the long showdown – undergone from early

2005 until summer 2008 – amongst Bosnian politicians from the three ethno-

religious groups, as well as between each of these groups and the HR/EUSR.

Balancing this trend, the following pages mainly focus on the political

developments that accompanied the reform of the Bosnian police and the

signature of the SAA. The analysis emphasizes the difficult confrontation

between international institutions and local elites. Conflicting agendas

determined a stall without precedents. Witnessing the failure of its long

supported conditionality, the EU ended up in an uncomfortable position.

Brussels saw a possible way out in the emergence of domestic ownership of the

reform agenda. Stepping back and disowning a mantra that had been repeated for

over three years (no police reform equal to no more progress of the SAP) the EU

allowed domestic politicians to, so to speak, ‘conquer’ the primacy of the

negotiations for reform. The discrete abandoning of conditionality allowed the

EU avoiding an open and more problematic correction of policies. This subtle

maneuver hence helped Brussels to defend its ‘no mistake policy’. This

expression is employed to describe the tendency of external actors in crisis areas

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to deny objective miscalculations, mistaken politico-diplomatic choices, and

unproductive reform strategies. This reluctance to take stock of mistakes and

admit responsibilities represents a commonality in international statebuilding

missions. In order to consolidate their governance and supervision roles,

international statebuilding mission tend to present their policies, conditionality,

and strategic choices as ‘the good and the proper’, whose validity should not be

questioned, even when clear limitations emerge from implementation processes.

In their recent seminal work on statebuilding, Ashraf Ghani and Clare

Lockhart have attentively pointed at the problem of responsibility as to one of

the crucial variables that affects international intervention in the stabilization and

reconstruction of failed or failing states. In their opinion, international agencies

dangerously lack an ‘understanding of shared responsibility, a vision of

coproduced outcome, or an international role that does not involve, at one

extreme, imposed solutions that amount to viceregal hubris or, at the other

extreme, a type of benign neglect that consigns the international community to

the role of interested observer’ (Ghani and Lockhart 2008: 5-6).

3. Police restructuring as technical change: the picture

presented from Brussels

The reform process of the Bosnian police was put on the negotiation table with a

certain determination by HR/EUSR Ashdown only in 2004, and it became a pre-

requisite for the conclusion of the bilateral EU-BiH negotiations on the SAA.

Inserting the reorganization of the Bosnian police as a key conditionality in the

pre-SAA package deal allowed the EU to continue covering this reform process

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under the same original technical cloak that had been determined when police

restructuring started to be implemented under the auspices of the UN in the late

1990s. This ‘maquillage’ was attempted in spite new strategic and ideological

considerations had clearly emerged on the part of the EU and started to influence

EU policy-makers. This choice aimed to prevent irreconcilable ethnic

confrontation on the issue. Nonetheless, it soon started to be clear that domestic

political tensions over the most delicate passages of the reform sponsored by

Brussels were destined to become overwhelming and difficult to solve in the

timeframe originally identified.

At the very beginning of the negotiations, however, the strategic make-up

of politics with technocratism seemed to be successful. Indeed, an agreement on

a reconfiguration of policing was almost reached, with Bosnian Serb politicians

who even accepted the plan to redraw ‘police regions’ across the IEBL (Moore

2005). All Bosnian parties undersigned an operational agreement in October

2005, which included a detailed working schedule. Amongst other provisions,

the entente implied the creation of a Directorate for Police Restructuring

Implementation that – as expressly agreed by the parties – ‘shall be assigned to

make a proposal of a plan for implementation of police structures reform in BiH

per phases, including proposals of police regions’ (OHR 2005b: emphasis

added).

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3.1. Ashdown’s centralization strategy and the EC’s technical

packaging of police reform

The chances for a smooth deal started to fade when Bosnian politicians felt that

restructuring the police was the last centralizing effort undertaken by HR/EUSR

Paddy Ashdown, which could have produced a revolution in the allocation of

powers and competences within the domestic arena. As a former Head of the

OHR Legal Department has clarified, Ashdown’s agenda was clearly aiming to

‘build Bosnia’s central government and undermine the country’s sub-sovereign

political units: only in this way ... Bosnia could become a normal European state

and put its violent war behind it’ (Parish 2007: 16). This statement further

confirms the idea presented in the previous chapter about the EU member-

statebuilding in BiH as a technical institution building exercise to be

implemented without a formal opening of the constitutional Pandora box and in

the absence of a structured reconciliation project.

As Matthew Parish (2007: 16-17) further clarifies, in order to achieve the

purpose of drastic centralisation, Lord Ashdown ‘became a one-man legislative

machine, repeatedly using the Bonn powers to enact legislation, creating new

institutions, and implicit threats to remove officials to push the Entities to agree

to transfer new powers to central government’. This analysis can be supported

since it finds clear and objective confirmation in the OHR statistical record. So

far, Ashdown has been indeed the most active user of the Bonn Powers and a

staunch promoter of what could be referred to as the centralization-no-matter-

what policy.

The debut of the British HR/EUSR in the exercise of the Bonn Powers

dates back to June 2002, when he dismissed Nikola Grabovac from his post as

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Finance Minister of the FBiH (OHR 2002). From that moment to the end of a

mandate that lasted almost for four years (from June 2002 until January 2006),

he adopted 447 decisions. Particularly in the first half of his tenure, decisions

were focused in the field of judicial reform (almost one hundred already at the

end of 2004), as well as on state-level matters and constitutional issues (almost

forty in the same time span). On the contrary, limited direct intervention was

attempted in the field of economic reform: only 34 decisions were adopted in

this sphere throughout the Ashdown’s mandate.

The HR/EUSR also devoted particular attention to the removal of public

officials – both elected and civil servants. In summer 2004 alone, Ashdown

issued a ban from public offices for over sixty individuals.79 With the term ‘ban’,

in the OHR jargon is intended the prohibition of ‘holding any official, elective or

appointive public office, running in elections and holding office within political

parties’. The removal from office is accompanied by the suspension of the

related salary and possible privileges: the standard OHR decision of this type

usually specifies that ‘any entitlement to receive remuneration or any privileges

or status arising out of his said position ceases forthwith’. These two formulas

are recalled in all OHR removals, unless these come in the form of ‘conditional

bans’. In this other circumstance, the HR might ban an individual from serving

in a specific policy field or a given public function. Picking amongst many

examples, the conditional removal of Zoran Djeric, RS Interior Minister, was

one of the first decisions of such kind adopted by Paddy Ashdown. In this

specific case, Djeric was banned from ‘holding any law enforcement, or

executive public office’ as well as from ‘holding any position within a Ministry

of Interior or equivalent’. However, as it is clear from the letter of the OHR’s

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decision, Djeric was not banned from serving in other areas of the public

administration.80

Reconnecting all the above elements, it might be useful to summarize

Ashdown’s activism by distinguishing three key centralizing moves – the

reorganization of the judicial system, the completion of the reunification of the

army,81 and tax reform (which allowed merging the country’s three separate

customs administrations and create a single, state-wide VAT system) – as well

as one clear and ambitious plan to clean up the Bosnian public administration

and governmental institutions from corrupted and nationalist officials. Reaching

the verge of this simultaneous ‘piece-by-piece centralization’ and ‘cleaning

effort’, the HR/EUSR focused on the reform of the police as to the very last

challenge for the rationalization of the Bosnian state structure.

The input from the Commission on this specific matter had been more

prudent. For instance, a reference to the need for police restructuring was made

in the Commission report ‘on the preparedness of Bosnia and Herzegovina to

negotiate a Stabilisation and Association Agreement with the European Union’,

a feasibility study published in November 2003. In this document, the police was

only one of many other fields where Bosnian authorities were asked to intervene

with substantial reforms and institutional ameliorations. No differently than

other items considered in the feasibility study, police was dealt with a highly

technical understanding and, possibly even more than other issues, it was

approached with an exclusive focus on the equation between costs and

performances.

Back then, the Commission mainly criticized fragmentation and conflicts

of competences between the different police forces deployed in the country,

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stressing that ‘the complexity of the existing multiple police forces increases

costs and complicates co-ordination and effectiveness… Costs are high because

of duplication in areas such as training and equipment. Financial and technical

constraints limit crime fighting abilities’ (European Commission 2003: 26). The

emphasis on efficiency and operational aspects was attentively kept by the

Commission, particularly after the Police Reform Commission (PRC 2004)

issued a detailed report on how to implement such a challenging reorganization.

In a letter to the then BiH Prime Minister Adnan Terzić, in his capacity as EU

Commissioner for Enlargement, Chris Patten emphasized the connection

between counter-crime measures in BiH and security in Western Europe.

According to Patten, the direct and pressing involvement of the EU in the police

reform process would be legitimized by the fact that ‘if BiH is not able to tackle

crime effectively, this has a bearing on crime elsewhere in Europe, including

within the EU’ (European Commission 2004b: 1).

3.2. The difficult balance between strategic political objectives

and technocratism

The emphasis attached by the Commission to the fight against crime should not

obfuscate the strategic objectives attached to police reform by the HR/EUSR

Ashdown. From the mandate of the PRC, it is possible to see that while

arguments on efficiencies were given priorities, the HR/EUSR was nonetheless

ready to open a more political confrontation with Bosnian elites. The PRC was

established thanks to a decision adopted directly by Ashdown (OHR 2004). In

the very first article of the mandate, the HR/EUSR clarified that the new body

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was expected to elaborate ‘a single structure of policing for Bosnia and

Herzegovina under the overall political oversight of a ministry or ministries in

the Council of Ministers’ (OHR 2004).82

The ideological and strategic intentions at the basis of police restructuring

become more obvious if we recall that police restructuring was somehow

detached from judiciary reform. The reform of the judicial system – which, once

completed, was presented by Ashdown as one of his most relevant success

stories – was not proposed as a point of reference for police reform. This link

was completely absent in the mandate given by the HR/EUSR to the PRC and

appeared only as a sporadic term of reference in the final report issued by the

same PRC at the end of its assessment activities. Indeed, in what turned out to be

a 283-page handbook for reform, the problem of effective cooperation between

police officers and prosecutors appears only in the section that provides the

detailed ‘Legal Provisions for the Single Structure of Policing’. In Art. 63, which

outlines ‘Duties and Responsibilities of the Local Police Commissioner’, it is

clarified that commissioners, amongst other responsibilities, must ‘ensure proper

implementation of the guidelines and directives of the Prosecutor concerning the

activities of police officials in relation to criminal proceedings within his/her

police area’ (PRC 2004: 139).

The absence of a clear link between the two reform processes in the PRC

report is striking, especially since the HR/EUSR originally called for an

assessment of policing in BiH on the basis of the feasibility study published in

November 2003 by the Commission, where instead a clearer technical focus on

the overall law enforcement capabilities of the country was present. The

Commission enumerated the most critical operational difficulties of the Bosnian

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police, highlighting what changes would improve the general counter-crime

capabilities of Bosnian authorities. According to the analysis elaborated in

Brussels, the following weak points had to be tackled: ‘police forces in one

Entity have no right of “hot pursuit” into another; there is no central data base,

different Entity forces use different information systems’ (European

Commission 2003).

The decision to maintain the two reform processes separate seems

particularly strange if we consider that symmetries between judicial districts and

police areas should be common sense. This is of particular relevance in a

country like BiH, where internal boundaries of any kind are systematically

‘exploited’ and turned into insurmountable barriers by politicians that find it

convenient to feed their constituency with nationalism, as well as by civil

servants that tend to privilege the relationship with the ethnic group to which

they belong. Interviewed on this specific matter, an OSCE officer serving in

Sarajevo as Legal Adviser on Judicial and Legal Reform confirmed the

impression that, in spite of the rhetoric on efficiency, institutional centralization

was the primary objective pursued by the EU.

The police reform has been presented by the EU in a very weird

way. Paradoxically, the EU principles could potentially turn the

police structures into something more expensive and complicated

than today. Moreover, it is probable that this reform can even

produce a less efficient police. A reorganization of the police should

be indeed structured in parallel with the reform of the judiciary

system. Without doing so, the potential costs and the series of

inefficiencies could be detrimental. We alerted EU and OHR

officials repeatedly on the problem, but so far without success.83

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The idea that police reform was packaged and linked to the SAA to serve

more strategic and ambitious institutional objectives has been confirmed by Ms.

Anna Ibrisagić, a Swedish MEP of Bosnian origin who has served on the

Foreign Affairs Committee of the EU Parliament since the 2004/2009

legislature. When the political crisis erupted in BiH after summer 2007, Ms.

Ibrisagić met the key actors of the political confrontation over the police reform

to explore grounds for mediations. In particular, she followed firsthand the

contacts between Dodik and Silajdžić, which eventually paved the way for the

Mostar Declaration (the agreement that at the end of 2007 helped to overcome

the police reform impasse) and that had an initial positive implication in the

drafting of a protocol on police reform (Protokola o ispunjavanju uvjeta za

reformu policije koji su potrebni za parafiranje i potpisivanje Sporazuma o

stabilizaciji i pridruživanju / Draft Protocol on fulfilling the police reform

requirements necessary for initialling and signing the Stabilization and

Association Agreement as a basis for police reform in BiH) signed by the two

leaders on 28 September 2007 (Reuters 2007). Interviewed at the European

Parliament in the aftermath of the Dodik/Silajdžić compromise, the Swedish

MEP strongly criticized the scepticism with which the September protocol was

‘handled’ by the HR/EUSR. According to Ms. Ibrisagić:

The link between police reform, EU principles, and the SAA has

become exasperation. Did the International Community realize that

the Dodik/Silajdžić compromise was the first kind of agreement

between the two sides after years? Why did they make only negative

comments on that? I believe that all has to do with the divisions

inside the EU. I have clear evidence that some countries in the PIC

Steering Board are not satisfied with the developments and want to

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boycott any result that is far from their expectations. What these

diplomats and politicians miss is that their work in BiH should be

about reconciliation instead of being about pushing their own

specific visions and strategic interests. The story is simple: different

countries have different visions and they try to dismiss the protocol

since they see it as an insufficient result.84

This extensive quotation highlights several problematic aspects of the EU

commitment to BiH, which can be extended more in general, to the experience

of other multilateral organizations involved in peacebuilding initiatives and post-

conflict stabilization in crisis areas. First of all, the analysis of the Swedish MEP

raises the problem of conflicting interests among EU member states. As has also

been pointed out by the literature: ‘International agencies are not simply staunch

defenders of human rights, but are also organisation with their own institutional

interests, priorities and objectives resulting from the self-interest of their

member states’ (Belloni 2007: 175-76).

Secondly, Ibrisagić offers an interesting assessment when she touches

upon the specific situation in BiH and the showdown on police reform. In

particular, the comment on the ‘exasperated’ attitude shown by the HR/EUSR

and the rest of the international community can be shared. When the

Dodik/Silajdžić protocol was sent to the attention of the international

community, the HR/EUSR Miroslav Lajčák offered a moderate but nevertheless

positive comment on the achievement (OHR 2007i). However, only a few hours

later a press release clarified that: ‘OHR and EUSR have received the

Dodik/Silajdžić Protocol which is now under review by the relevant EU

institutions. We urge everyone to refrain from interpreting the document as only

the European Commission can give an opinion on whether this agreement is in

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line with the three principles for police reform’ (OHR 2007v). This statement

mirrors the choice of the HR/EUSR to emphasize the technical aspects of the

process and obfuscate the highly political and strategic nuances of the proposed

reform.

Only two days later, the importance of this ‘entente cordiale’ was

completely downplayed, since it became clear that the Bosnian Parliament was

not in a position to give any concrete and rapid follow up. Hence, already on 1

October 2007 (which was the deadline for police reform chosen by the

HR/EUSR back in August) Lajčák commented: ‘on Friday afternoon I received a

paper reflecting the views of SBiH and SNSD85 ... It is positive that these two

party leaders have taken the police issue and the future of the country seriously

and decided to work towards a solution ... The document however leaves some

key questions unresolved’ (OHR 2007r).

4. Police restructuring as an opportunity for ethnic gains:

the picture seen from Sarajevo (and Banja Luka)

The prolonged stalemate shows that attempts by the HR/EUSR to maintain an

aura of technicism over police reform were overwhelmed by domestic political

tensions. As an EU diplomat admitted ‘through the police reform we were

dragged down into politics. We wanted this process to be something technical

that could hold a political point. But Bosnian politicians reminded us that it was

all about politics’.86 To be more precise, the technical ‘maquillage’ over police

reform survived until 2006. After the general elections that took place in October

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of that year, the Bosniak leader Haris Silajdžić tried to ‘hijack’ the process and

used it to question the existence of RS, thus causing resistance in Banja Luka to

the reform package. When this happened, EU diplomacy stressed the idea that

police reform was a necessary ‘technical’ step for the adoption of European

standards and principles (that actually in the field of police do not really exist in

the EU). According to the EU, Bosnian politicians were expected to agree on a

reform based upon three ‘European’ principles: place exclusive competence for

police legislation and budget at the State level; recast regional police areas on

the basis of functional police criteria; help protect the police from improper

political interference (OHR 2005c).

The failure of the technical maquillage over police reform generated a

negative spiral. Still today, several months after the apparent conclusion of the

impasse and the signing of the SAA, years of tensions over police reform still

have a negative impact on the relations between Bosnian domestic elites and the

international community. An assessment that confirms this impression was

provided by the ICG in March 2009. Describing the key features of ‘Bosnia’s

incomplete transition: between Dayton and Europe’, the analysts from the ICG

have argued that the mismanagement of the conditionality link between police

reform and SAA (which symbolized a relevant intermediate goal for the overall

European destiny of BiH) and the tendency of the HR/EUSR to get involved in

the political showdown by using the Bonn Powers, are at the basis of the current

stalemate. The ICG report identified the following criticalities:

The roots of the international community’s problems in Bosnia and

Herzegovina go back many years, but the direct antecedents of the

current situation lie in the failure of the police reform process in the

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fall of 2007 and the High Representative’s abortive use of his Bonn

Powers in response. The international community overreached in its

demands on police reform, overreacted to its failure and was

unprepared for the consequences (ICG 2009b).

4.1. Conflicting ethnic aspirations over the reconfiguration of

the Bosnian central state

When the EU nominated Miroslav Lajčák as the new HR/EUSR reform

priorities dramatically switched compared with the tenure of Schwarz-Schilling:

broad constitutional issues were taken out of the negotiation table, so that

emphasis could again be attached, almost exclusively, to police restructuring as

key pre-SAA conditionality. Facing the breakdown of the talks on police reform,

the German HR/EUSR (who held his position from January 2006 until July

2007) engaged in negotiations for the definition of a constitutional reform

framework. As has been previously shown, the lack of support from Brussels

induced Schwarz-Schilling to abandon the project and resign from his post.

Nevertheless, a few days prior to his departure from Sarajevo, he emphasised the

importance of constitutional reform as the basis for reconciliation. Published by

three main local newspapers (Dnevni Avaz, Nezavisne Novine, and Vecernji

List), Schwarz-Schilling’s pre-departure admonition emphasised that ‘now that

the peace implementation process and with it the institution of the High

Representative are gradually coming to an end – and Euro-Atlantic integration is

the key task – it is time to reform the constitution and develop a stable, self-

sustaining and efficient state structure’ (OHR 2007s).

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In spite of this warning, Lajčák came to BiH with the unwritten mandate to

specifically break the deadlock on police reform. This policy change paved the

way for one of the most severe crises experienced in post-Dayton BiH. The

change of focus resulted from a ‘technical understanding’ of EU driven-

statebuilding, which is based on the idea that Western Balkans countries are like

those others that have already gone through the enlargement process; therefore,

they are equally expected to strive to respect all the conditionalities decided in

Brussels and commit to take on board the acquis communautaire and implement

it line by line. The critique that can be made against this view is relatively

simple: BiH has a very different history if compared with the Eastern European

countries that joined the EU in recent times. While the grand strategy defined in

Brussels at the time mirrored this simplistic approach to the stabilization of BiH,

some personnel in the field started to develop a different sensibility. The Head of

the Political Economic Section at the Commission Delegation in Sarajevo

admitted:

We were not able to reproduce and walk the same path that has

characterized the integration of Eastern European countries. This has

to do with some of our decisions and, obviously, with the fact that

the post-conflict environment is complicated by the persisting ethno-

religious divisions. Here all our efforts are conditioned by the

presence of three different interlocutors and three different set of

political aspirations.87

To some extent, in BiH there is no social contract between the different

political communities that instigated the civil war in the early 1990s. There is

still not one political BiH, but a state divided into three political ethno-religious

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groups that are too suspicious of each other to surrender in the ongoing

sovereignty struggle. A pre-requisite for the construction of the state is sufficient

cohesion at the socio-political level. Currently, BiH resembles a mere

assemblage of ethnic groups amongst which there is no substantial and shared

commitment to the state but a permanent confrontation. As Roberto Belloni

(2007: 1) has stressed, the Bosnian peace process, since its inception, has mostly

resulted in an ‘attenuation of historical ethnic and national rivalries’ rather than

grassroots reconciliation of a complex multi-ethnic polity.

This approach is generally justified in Brussels by emphasizing that

technocratism preserves local ownership of changes. Privileging functionalism

and gradualism, the EU has thus focused predominantly on ‘technical’

conditionalities that – even when they clearly encompass complex political

changes for the target state – are presented in a technical form. A clear example

of this tendency can be found in the set of priorities assembled by the

Commission (2005) and then adopted by the EU Council as the main terms of

the official ‘European Partnership’ between Brussels and Sarajevo (European

Council 2006a).

In the opinion of EU policy makers, presenting technical shopping lists is

also a way to unblock crucial political and institutional deadlocks that still today

prevent BiH from developing into a more efficient state structure. However, in

spite of the externally-facilitated institutional restructuring and the EU

perspective, there is no agreement among Bosnian elites on how to move beyond

Dayton. As it was in the immediate aftermath of the peace settlement in 1995,

the main institutional lines set out in the Dayton agreement still now represent a

‘ceiling’ for the Serb community, a ‘starting ground’ for more drastic

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centralization for the Bosniaks, and something in between these two for the

Croats.

Clearly, Serbs and Bosniaks have antithetic positions, and the attention of

the international community has mostly been focused on the confrontation

between these two groups. However, it should not be disregarded that the Croats

have never completely abandoned the idea of running their own entity. It is very

interesting that at the end of 2006 the Bosnian Serb politician Milorad Dodik

was elected ‘personality of the year’ by a well-known Croatian magazine based

in the FBiH, the Vecernji list for BiH. This daily paper is produced by the same

company that distributes the Vecernji list in Croatia. The motivation behind this

paradoxical decision was the recurring incitation given by Dodik to the Croats

living in the FBiH, encouraging them to constitute their own entity at the

expenses of the Bosniaks living in the Federation. Moreover, it is probably even

more interesting to stress that the readership of Vecernji list for BiH is almost

purely Croats, and this award was a result of the reader’s voting and not a

decision taken by the editorial team of the newspaper. Dodik went personally to

the award ceremony and expressed all his gratitude with the following comment:

‘I have nothing against BiH, I just want to be in this country, wishing good

things to happen to all people, as well as to those that are wanting nothing but

peace for this country and safe life’.88

Because of these three conflicting views on the general configuration of

the state, Bosnian elites approach cooperation by relying mostly on logics of

relative gains. Institutional adjustments that bring potential benefits receive

hardly any cross-ethnic support when they are perceived as steps that push the

central state towards the ideal configuration sponsored by one ethno-religious

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group or another. As clarified by Belloni (2007: 2) ‘Bosniaks, Serbs, and Croats

alike still take the following view: dominate or be dominated, impose one’s will

or withdraw’. In BiH, Interethnic cooperation has remained sporadic even after

the last renewal of the Parliament. Despite the defeat of nationalist parties in the

2006 general elections, the moderate parties that won have thus far confirmed –

in their strategies, interactions, and modus operandi – that confrontation based

on ethnicity remains the crucial feature of Bosnian politics. The struggle on the

terms of the police reform is useful to understand how the three different ethno-

religious factions are reluctant to cooperate when issues concerning the

configuration of the state are at stake.

Reporting to the Foreign Affairs Committee of the EP, HR/EUSR Lajčák

proposed an analysis that is worth quoting extensively, since it perfectly sums up

all the above elements on the domestic sovereignty struggle between Bosniaks,

Serbs and Croats on the organization of Bosnian central institutions:

There are three different concepts of the organization and

functioning of the country and two out of the three are in clear

opposition to each other. Serbs’ loyalty to the state is conditional

upon the others’ acceptance of the RS as a legitimate and permanent

part of the constitutional architecture. Croats remain fundamentally

dissatisfied with a two-entity setup that they feel consigns them to

the status of a minority in all but a few Federation cantons.

Meanwhile, most Bosniaks want a constitutional order that will do

away with the entities and provide for an effective central

government, even if it also devolves many powers to multinational

regions ... In theory, these separate stances should be possible to

reconcile. In practice, each of the political leadership is still not

looking for the lowest common denominator to find a mutually

acceptable solution, but clearly wants to impose its own vision of the

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country. The legacy of war and the logic of nationally based and

zero-sum politics make any significant compromise profoundly

difficult if not entirely impossible (OHR 2007u).

4.2. A matter of sovereignty and survival: Milorad Dodik’s

opposition

The RS Prime Minister Milorad Dodik strenuously defended the autonomy of

the RS Police as one of the last pillars of his Entity’s ‘sovereignty’ against the

supposed Bosniak strategy to create a centralized and Muslim dominated BiH.

Interestingly, from an RS perspective, Dodik’s opposition to police reform has

been purely, so to speak, ‘anti-economic’. The norms that define the partition of

budgetary responsibilities between RS and the FBiH for competences attributed

to the state level of governance leave no ground for doubt: the centralization of

an issue implies that the related budget is provided for two third by the

Federation and only for one third by RS. Article VIII of the Bosnian state

constitution clarifies that for issues dealt with at state level ‘the Federation shall

provide two-thirds, and the Republika Srpska one-third, of the revenues required

by the budget, except insofar as revenues are raised as specified by the

Parliamentary Assembly’ (US Department of State 1995).

On this basis, the first principle set by the EU as a key term of reference

for police reform (police legislation and budget must be placed at the State level)

should have represented a clear economic incentive for Dodik to accept a

scheme for reform as early as possible, also as a way to contain a possible source

of social instability. The salaries of police officers in RS are indeed far lower

than the average in FBiH, and less again than those of the police in the Brčko

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District. However, the RS Prime Minister preferred to minimize considerations

exclusively focused on the economic convenience of the centralization plan.

This choice was ‘financially sustainable’ for Dodik since in the course of his

first year and a half in office he achieved two important privatization plans, one

in the oil market and one in the telecommunication sector. Six months after the

2006 general elections, two international tenders were issued by the RS Entity

government: the first to sell 65% of Telekom Srpske and a second one to

privatize a state-owned oil refinery in Brod (which, together with a chain of

gasoline service stations, was bought by the Russian company Zarubezhneft).

Particularly with this latter move, the RS Premier managed to channel an

incredible amount of Russian petrol-dollars in RS.89

Once the economic arguments for reform had temporarily been contained

thanks to these two strategic privatizations, police reform became also for Dodik

a ground of purely political confrontation. To a certain extent, the animosity of

the debate and repeated crises meant that police reform became the last point of

contraposition between two different interpretations of the original sovereignty

trajectory in BiH. Dodik presented himself as the beacon of what can be referred

to as a ‘confederal’ interpretation of the Dayton agreement and the creation of a

multiethnic state built on two separate Entities. According to such a view, the

creation of a unified post-war BiH in 1995 has been possible thanks to the

compromise between the representatives of the Entities, who ‘permitted’ the

emergence of a multiethnic state by transferring some powers to central level.

From this perspective, the original sovereignty trajectory could thus be idealised

as a bottom-up release of powers, based on the consent of the two Entities. Any

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centralization move that followed was based on simultaneous concessions of

both Entities in favour of the state level institutions.

This understanding is opposed by Croats and, more strongly, by Bosniaks

as well as by most international observers who are concerned at the Serb

nationalist rhetoric and therefore seek to contain the institutional drifts that could

stem from their interpretation of the Bosnian state. Bosniaks, in particular,

support the idea that centralization of powers has taken place with the state

assuming competences. The central state, via a top-down exercise of power, can

deliberately collect competences under its direct responsibility. The legitimacy

of any centralization move would hence depend on the capacity of the central

government to concentrate governance, with a view to enhancing efficiency and

reducing asymmetries between the Entities. On the contrary, the leit motiv in

Banja Luka has been that, whenever the centralization of an area of governance

takes place, this is not due to an arbitrary assumption of competences by the

state, but rather to an implicit, simultaneous, and ‘responsible’ concession from

the two Entities to the central government.

The constitutional court has often made reference to this matter, in general

ruling that the state has the original right to assume competences from the

entities. Art. 3 of the Dayton constitutional text (Law and Responsibilities of the

Entities and the Institutions) proceeds as follows: (A) All governmental

functions and powers not expressly assigned in this Constitution to the

institutions of Bosnia and Herzegovina shall be those of the Entities. (B) The

Entities and any subdivisions thereof shall comply fully with this Constitution,

which supersedes inconsistent provisions of the law of Bosnia and Herzegovina

and of the constitutions and law of the Entities, and with the decisions of the

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institutions of Bosnia and Herzegovina. The general principles of international

law shall be an integral part of the law of Bosnia and Herzegovina and the

Entities (US Department of State 1995).

4.3. A matter of law enforcement capacity: Miroslav Lajčàk’s

public diplomacy

Aware of this irreconcilable clash and conscious of the fact that this ideological

contraposition had inevitably affected also police reform, immediately after the

arrival of Lajčák in June 2007, the OHR re-launched a public campaign (that had

been first made in 2005) with the clear aim to dismantle what international

referred to as all the ‘political myths’ built around the police reform. In

particular, one of the core messages of this campaign was to stress in the clearest

terms that ‘[p]olice re-structuring is only about establishing a professional police

service and will not abolish the Entities’ (OHR 2007a). In the same text there is

another element that deserves particular attention, what the OHR identified as

myth five: ‘there are no EU requirements for police reform’. The OHR argued

against this supposed myth that ‘the EU has said clearly that BiH must adopt

police restructuring if it is to move forward towards the EU. The three key

principles must be adhered to and the Police Restructuring Commission report is

one way to do this’ (OHR 2007a).90

This point was made in response to comments by Milorad Dodik. The RS

leader contested the EU rhetoric on the three ‘European’ principles that should

guide reform. On several occasions, the HR/EUSR and EU officials argued that

these principles would align the Bosnian police with consolidated European

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‘standards’ and ‘customs’. Dodik contested this argument on the pages of the

International Herald Tribune. The RS Premier replied in the following terms:

There is no single European model for the reforms that Bosnia and

Herzegovina must implement to move toward this European future.

Instead, the European Union is resplendent in its diversity in models

of governance. There is significant variety with the European Union

in taxation, court systems, and law enforcement, among others. Yet

this potpourri of technique is not an indicator of disunity; it merely

evidences the imperative of local representation and the diversity

thus reflected in authentic democracy (Dodik 2007a).

This criticism on the arbitrary nature of the three principles was reiterated

by Dodik at every possible opportunity, also through the domestic media. For

instance, in a long conversation with Senad Pećanin – editor of the local BH

Dani magazine – the RS Prime Minister contested the lack of any technical

rationale for the reform:

If you would want to seriously and analytically examine all that

today represents a problem in BiH, you would see that behind these

problems there are decisions by some internationals, which years

after, as we see, turn out to be totally ill-intentioned for BiH itself.

First, the police reform that was made in the way as described by

Paddy Ashdown in his book, I hope that you’ve read it, believe me, I

did. And I saw in which way serious things were created (Pećanin

2007: 9).

In this open attack, Dodik referred to some imprudent confessions made by

Ashdown in the pages of his recently published memoirs. The British politician

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admitted that the need to propose a centralizing strategy for the police

represented his very personal conviction, which was ‘as always’ blessed by

Chris Patten during a quick morning phone-call (Ashdown 2007b: 249).

Facing repeated accusations that the EU had launched an arbitrary process,

the HR/EUSR developed a new communication strategy. In the simplest possible

terms, Lajčák tried to make clear that the absence of a European common model

of policing should not prevent Brussels from proposing basic principles to be

respected. The main message from the Slovakian diplomat to Bosnian Serb

politicians can be summarized by the following idea: it is not important whether

these principles reflect the average situation in Europe, what matters is that the

EU has identified them as being appropriate for BiH.

At the same time, the HR/EUSR kept emphasizing on several occasions

the equation ‘no police reform = no SAA’ (Supova 2007), which Brussels

supported with an unprecedented determination. Backed by the then

Enlargement Commissioner, Finnish politician Olli Rehn, the HR/EUSR sent a

clear message to domestic elites. Less than two months after he took possession

of his new offices in Sarajevo, Lajčák announced: ‘the European Union is

following the police reform negotiations very closely, and their outcome will be

a clear indication of the political maturity of the country’s leaders and their

readiness to lead Bosnia and Herzegovina towards the European Union’ (OHR

2007j).

In spite of this double-track communication strategy, during summer 2007

confrontation on police reform was heighted by two manoeuvres, one from

Silajdžić one from Dodik. The former – leader of SBiH, who could count also on

important support from the head of SDA Sulejman Tihić91 – opposed the new

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framework concepts for reform, which had been the first official acts of the new

HR/EUSR. The counter-reaction from Lajčák proved to be emblematic. The

Slovak diplomat declared: ‘I am deeply disappointed … By rejecting the draft

proposal on police reform before all the major political leaders have even

received it, [Silajdžić and Tihić] have demonstrated a disdain for their colleagues

and the political process’ (OHR 2007p).

Possibly, relations with Banja Luka were even tenser. Speaking on the

Radio Televizija Republike Srpske, Dodik opposed a priori any institutional

development, claiming that change was mostly being promoted by Bosniak

interests to challenge the integrity and existence of RS. Similarly in this case, the

reply from the HR/EUSR was resolute: ‘[Dodik’s] statements questioning the

sovereignty and territorial integrity of BiH are detrimental to the country’s

ongoing efforts to continue reforms and integrate into Euro-Atlantic institutions’

(OHR 2007d). These declarations opened a period of tough confrontation. At the

end of summer 2007 Lajčák imposed a one-month deadline for police reform;

however, as stressed above, once the deadline had passed the HR/EUSR could

just take note of the lack of agreement (OHR 2007q). The HR/EUSR found

himself dragged into the middle of an unprecedented crossfire between Bosniaks

and Serbs, while new fears grew amongst the Bosnian population. ‘We are back

to 1992(!)’ was a widespread warning heard in Sarajevo when average Bosnian

citizens were asked to comment on domestic politics.

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5. The compromise and the signature of the SAA

While clearly placed in an uncomfortable position, Lajčák was constantly

backed by Brussels, contrary to the experience of his German predecessor on

constitutional reform, and he could thus keep the promise made to the Bosnian

people in his inaugural TV address. On that occasion, the Slovak HR/EUSR

made the following comment: ‘we will not tolerate any activities or statements

that push BiH back into the atmosphere of tension and hatred’ (OHR 2007h).

Amongst other protagonists at EU level, Javier Solana, witnessing the

recalcitrant attitude of Bosnian politicians towards negotiations, blamed them for

‘gambling with the future of their own country’ (Associated Press 2007a).

Enjoying such support, Lajčák raised the level of confrontation and in October

2007 adopted manu sua a reform of the voting procedure of the Council of

Ministers (CoM). This use of the Bonn Powers was resolutely contested by

Nikola Špirić, a Bosnian Serb politician, who resigned from his post as Prime

Minister (BBC News 2007). The HR/EUSR labelled Špirić’s resignation as an

irresponsible act and argued: ‘It is paradoxical that the Chairman of the Council

of Ministers should resign over measures that are designed to make the Council

of Ministers, the body that he Chairs, more efficient … the country needs

functioning institutions for the reform processes to be re-launched’ (OHR

2007e). Speaking before the UN Security Council in New York, Lajčák

reiterated the need for CoM reform and pointed out that political stalemate in

BiH inevitably required ‘robust and creative’ initiatives (OHR 2007o).

A key passage in understanding the extent of Lajčàk’s confrontation and

blame-game with domestic politicians can be found by analyzing the

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presentation to the press of the reformed CoM voting procedures. The most

interesting passages of the HR/EUSR statement read as follows:

We cannot consider our mission complete until changes are made in

the direction of establishing a stable, European, democratic,

multiethnic society in Bosnia and Herzegovina. There are several

ways how this objective can be achieved. The most favorable of

them is to achieve this goal through European integration. This is a

road that … has no alternative for a European country such as

Bosnia and Herzegovina … This is why I have put in so much effort

to lift the blockage on the European integration process for this

country, a process which resolves current problems and leads to the

future at the same time. But, as you know, this is a process for which

only domestic politicians take responsibility voluntarily (OHR

2007g)..

The most delicate innovations introduced by the HR/EUSR were those

updating articles 16 and 18 of the existing Law on the CoM. Lajčák updated,

first, the rule on the quorum necessary to hold a regular session of the CoM, and

second, the decision-making process. On the first issue, the HR/EUSR

introduced the principle for which a session can be held whenever it is possible

to gather a majority of the members of the CoM, regardless of their ethnicity.

The previous requirement allowed holding a regular session only at the presence

of at least two members belonging to each of the three constituent peoples. As

far as the second point is concerned, Lajčàk’s provisions – which were labeled

as a revolutionary act by all Bosnian Serb parties – targeted the rule for which a

provision can be adopted only if supported by a majority of all members of the

CoM. The previous version of article 18 proceeded as follows: ‘a majority

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decision will be taken which must include the votes of at least two members of

each constituent people’. In the updated version of the voting procedure it is

specified that a decision can be adopted if it is based on the majority of ‘those

members presenting and voting’ (instead ‘of its whole number’) ‘provided that

the said majority includes the vote of at least one member of each constituent

people’ (OHR 2007g).

Apart from Špirić’s resignation, the move encountered firm opposition

from Banja Luka. One of Dodik’s advisers claimed that Lajčàk’s decision was a

source of tension, rather than the origin of solutions and efficiency:

The current political crisis has been triggered because the Decision

imposed by the High Representative, Miroslav Lajčàk, creates the

possibility that one constituent people can be outvoted within the

decision- making institutions of BiH. This is not an artificial crisis

that the RS government has purposefully created, but justified

concerns for the safety and future for all the peoples of BiH.

Agreements in multi-ethnic and decentralized countries should and

must be made by consensus between the different ethnicities

(Milosevic 2007).

For his part, the RS Prime Minister Milorad Dodik addressed a letter of

complaint to the European Parliament. In this communication he accused

HR/EUSR Lajčák of having ‘directly shaken the foundations of the Dayton

Peace Agreement’ and of being the one to blame for the negative political

climate affecting BiH at that time (Dodik 2007b: 68).

A few weeks later, the HR/EUSR issued an ‘Authentic Interpretation’ of

the changes made to the CoM working and voting procedures. Inter alia, Lajčák

explained that first, the main aim of his decision was ‘to facilitate the operation

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of the Council of Ministers; second, the changes and amendments apply equally

to all members of the CoM without any distinction’; third, ‘the changes and

amendments do not touch upon the overall composition of the CoM, and in

particular the equal representation of the constituent peoples’; fourth, ‘the

changes and amendments ensure that none of the members of the CoM can

obstruct its work simply by an unjustified and illicit absence from sessions and

the need for the Council of Ministers to be able to take decisions at all times’.

Lastly and most crucially, the explanatory note stressed that ‘the changes and

amendments are not to the detriment of any constituent people and any Entities

of Bosnia and Herzegovina’. On the specific update of article 16 of the previous

CoM ruling procedure, the Authentic Interpretation specified that this seeks to

prevent the ‘possibilities to block the Council of Ministers by the mere

absenteeism of members of a constituent people’ (OHR 2007g).

Apart from the ‘Authentic Interpretation’, the HR/EUSR also published a

list of strategic arguments in support of the imposed reform. This choice

respected a certain tradition by the HR/EUSR to communicate by issuing

Decalogues and explanatory notes over the internet as well as in the local press.

This habit had been inaugurated by Paddy Ashdown in 2005, with a view to

support the need of police reform. In line with such custom, also Miroslav

Lajčák published a Decalogue to support the imposed reform of the CoM voting

procedures. Among the most interesting ‘ten facts on the High Representatives

Decision Imposing Changes and Amendments to the Law on the Council of

Ministers’, the HR/EUSR stated that: ‘(2) measures apply equally without

discrimination to all members of the Council of Ministers; (3) the decision does

not change the composition of the Council of Ministers, and it especially does

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not change equal representation of constituent peoples; (10) The Decision does

alter the Law promulgated by the High Representative on Dec 2, 2002.

However, the time has shown that these mechanisms were regularly misused

since the Ministers failed to attend sessions and carry the duties they are elected

to and very well paid for’ (OHR 2007w).

In parallel with reform of the CoM voting mechanisms, two other

procedural improvements were made by Lajčák: a series of amendments to the

rules of procedure of the House of Representatives and to the House of Peoples

of the Parliamentary Assembly. These two packages were accepted within a

relatively short time frame. Only a few weeks after their adoption through the

use of the Bonn Powers by the HR, these reforms were formally subscribed to by

Bosnian Parliamentarians. Lajčák welcomed this development pointing that the

‘agreement opens the door for the BiH institutions to return to the European

agenda and formally adopt the Action Plan for Police Reform. This would bring

Bosnia and Herzegovina back to European integration process’ (OHR 2007m).

However, the confrontation over the CoM reform and the showdown for the

police reform determined the persistence of diffused tensions.

5.1. The Mostar agreement and the Sarajevo Action plan

When the impasse seemed unbreakable (also due to the tensions for the

previously mentioned reform of the CoM) a ceasefire arrived: in December 2007

the SAA was initialled. The EU granted technical approval to the agreement on

the basis of a general compromise signed by the main Bosnian party leaders in

Mostar (OHR 2007f) and the related ‘Action plan’ for reform adopted a few

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days later in Sarajevo (OHR 2007b). On the website of the Commission it was

announced that: ‘following Commissioner for Enlargement Olli Rehn’s

assessment that there is sufficient agreement on reforms among BiH political

leaders, the Stabilisation and Association Agreement with Bosnia and

Herzegovina is initialled in Sarajevo’ (European Commission 2007). Meeting

the Slovenian Foreign Minister Dimitrij Rupel – who was about to assume the

Presidency of the EU Council of Ministers – Lajčák emphasized that the

initialling of the SAA on 4 December 2007 reflected a ‘good atmosphere of

compromise [which] needs to be used to bring the country closer to the

European Union. The EU’s support for the European integration of Bosnia and

Herzegovina will only yield results if it is not abstract. Last week’s initialling of

the SAA showed that the EU is prepared to reward progress’ (OHR 2007n).

This last remark is representative of the benevolent attitude of the EU

towards the integration of BiH. However, in the attempt to keep pressure on

Bosnian elites, the HR/EUSR clarified that the crucial assessment would be

made on the actual reform that political leaders were able to transform into laws.

While commending the work that resulted into the Mostar agreement – which he

recognized as a good basis for police reform – Lajčák clarified that the deal

needed to be ‘followed-up by concrete steps, primarily the drafting of laws

[since] EU requirements will not go away, and party leaders must finally meet

their commitments and deliver results’ (OHR 2007k).

Highly sceptical comments were made by representatives from the block

of countries that in the EU Council constitute the ‘conditionality coalition’ (led

by Belgium, The Netherlands, and the UK). Amongst those criticizing the

weakness of the compromise achieved by Bosnian politicians, the Dutch

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delegate to the COWEB (a diplomat of Yugoslav origins) had no hesitation in

stating that: ‘the signature of the SAA by Olli Rehn is just a manoeuvre of the

Commission. You cannot reward someone for doing nothing. If you do not pass

your exams you cannot go to another level of class. However, initialling the

SAA is just in the mandate of the Commission; we cannot oppose it from the

Council’.92

In spite of the scepticism expressed by some EU members in COWEB and

the vague character of the promises made in Mostar and Sarajevo, the HR/EUSR

maintained a positive attitude towards the compromise and commented that: ‘the

political debate in Bosnia and Herzegovina is entering a new phase. Politicians

have shown leadership and a willingness to reach compromise for the benefit of

all citizens. This is commendable and I am confident that the European Union

will value this new political dynamic’ (OHR 2007l). On 11 December 2007f, the

leaders of the six main Bosnian political parties gathered again in Laktasi and

‘re-installed’ Špirić as chair of the state-level CoM. On that same occasion they

committed to follow-up the action plan for police reform with concrete

legislative measures (OHR 2007c).

Interestingly, interviewed on 5 December 2007 by the Bosnian newspaper

Dnevni Avaz on the possible future steps that Bosnia had to make, Olli Rehn

confirmed: ‘first the police reform must be implemented and a functionality of

state institutions should be restored. After that, there is the reform of BiH

Constitution. That is a crucial question and its solution represents an obligation

of people and leaders in BiH’ (Rehn 2007). This position indicates certain

confusion in the EU approach. By giving the green light to the SAA signature on

the basis of the Mostar compromise and the subsequent Sarajevo working plan,

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the Commission accepted an unusual working schedule. The Sarajevo plan for

the implementation of the police reform – which was signed in the Bosnian

capital on 22 November 2007 – represented an interesting example of deal on

procrastination.

While the Sarajevo plan foresaw the imminent creation of a series of new

state-level institutions (e.g. ‘a Directorate for coordination of the Police with aim

to improve efficiency of the work of relevant police bodies in Bosnia and

Herzegovina and effectiveness of the communication at the level of Bosnia and

Herzegovina with relevant international institutions; Institute for forensics;

Institute for education and professional upgrading of personnel; Police Support

Agency; Independent Board, Citizens Complaint Board; and Police Officials

Complaint Board’) and recognized ‘relevant issues of relationship between these

and local police bodies shall be regulated through a new and single police

structure of BiH, on the basis of the three principles of the European

Commission’ it nevertheless proposed that these substantial changes would only

‘be established pursuant to the provisions of the Constitution of BiH to be

elaborated in a constitutional reform process’ (OHR 2007b).

Following the initialling of the SAA, party leaders gathered again on 26

January 2008 in Sikori Brijeg to agree on the next steps. At the same time, the

EU began to intensify pressure on local levels. For instance, a letter from the EU

Commissioner for Justice, Freedom and Security93 addressed to the Bosnian

Minister of Security highlighted the connection between progress on police

reform and EU visa liberalization for Bosnian citizens (European Commission

2008b). On closer examination, this letter actually demonstrates some interesting

peculiarities in the Commission’s attitude to conditionality for BiH. The

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document structure shows the tendency by the Commission to connect highly

technical and specific requirements with requests of a highly political nature.

The letter was opened with an introductory statement on the willingness of

the Commission to open a dialogue on visa liberalization with all the countries

of the Western Balkans, since the process ‘should ultimately promote people-to-

people contacts’ between the people of the region and EU citizens. The letter

went on to remind the Bosnian authorities that while such a dialogue had already

been established with Serbia, Macedonia, Albania and Montenegro, Sarajevo

still remained a step behind. However, being next on the list, Bosnians should

not arrive unprepared at such an important rendezvous. The police reform is

referred to as an issue of ‘key importance … for the progress of Bosnia and

Herzegovina on the road to EU integration’.

The text also mentioned the introduction of passports containing bio-

metric identifiers by the Bosnian authorities: this technical reference served the

purpose of diluting the political link between police reform and visa

liberalization. Putting police reform alongside to the improvement of identity

documents allowed the Commission to stress the technical aspects of the process

over the political ones. The link between police reform and visa liberalization

was not new. Back in 2005, the OHR identified ten reasons to support police

restructuring. This Decalogue noted that ‘without police restructuring, there will

be no change in European visa requirements for BiH citizens’. Moreover, in

addition to stressing that ‘police restructuring is a European Union

requirement’, the Decalogue was closed with the straightforward statement:

‘police restructuring is common sense’ (OHR 2005a).94

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5.2. The technical reform of the Police adopted in April 2008

In spite of the renewed pressure, the supposed ‘fresh political dynamism’ had a

short lifespan. On 16 April 2008, the Bosnian Parliament adopted two technical

laws on policing: a ‘Law on Directorate for Coordination of Police Bodies and

on Agencies for Support to Police Structure of Bosnia and Herzegovina’ and a

‘Law on Independent and Supervisory Bodies of Police Structure of Bosnia And

Herzegovina’.95 At the same time though, the discussion on the police structure

has deliberately been suspended until an agreement on the constitution is

reached. The small technical steps were welcome by most EU member states.

Amongst other leaders, the German Foreign Minister Frank-Walter Steinmeier

provided an example of the benevolent attitude demonstrated elsewhere in

Western Europe:

I welcome today’s decision by the House of Peoples in Sarajevo.

The international community has always pushed for decisive

progress on police reform and the necessary legislation. This

decision is therefore a success – not just for the political decision-

makers in Bosnia and Herzegovina, but also for the mediation efforts

of the EU’s Special Representative Miroslav Lajčák. Bosnia and

Herzegovina is thus taking a major step closer to the EU. We will

now take stock of all the spheres where reforms are necessary and I

am confident we will also be able to sign the Stabilization and

Association Agreement quickly (Steinmeier 2008).

The international press welcomed the development far more cautiously

and, in some cases, highlighted how distant was the reform laws from the goals

previously set by the EU. An editorial note that appeared in the online

publication EUbusiness clarified that the laws adopted by the Bosnian

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Parliament were far, in both quantitative and qualitative terms, from the

conditionality that the EU had maintained for the previous four years: ‘[the

police] reform laws … barely touch the tip of a massive iceberg of changes

needed to streamline the way the police service is run, and indeed add new

layers of agencies to an already complex system’. The same commentary also

emphasized that ‘the reforms also help entrench the divide between communities

that the EU has carefully tried to avoid’ (AFP 2008).

Undoubtedly, it is not entirely fair to condemn a reform before it has been

fully put into practice and its effect can be tested in more concrete terms by

looking at what actually happens in the most advanced phases of its

implementation. In this case, however, a preliminary negative assessment can be

made, in view of the clear distance that separates the strategic goals set by the

EU with its conditionality and the limited changes agreed by the main Bosnian

political parties that were subsequently enacted. Moreover, it is notable that the

Commission itself eventually acknowledged all the shortcomings of the reform

that were adopted. In the progress report issued in November 2008, the

Commission expressed a general disappointment, stressing that ‘cooperation and

information exchange between law enforcement agencies remain weak’

(European Commission 2008a: 56).

However, the most interesting observation offered in the evaluation report

comes when the Commission openly admits that the laws adopted by the

Bosnian Parliament a few months earlier might on the contrary have increased

the institutional chaos affecting the Bosnian police. The words employed by the

Commission leave no ground for doubt: ‘these laws provide for establishment of

seven new agencies at State level. Given that no agreement was reached on a

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transfer of policing powers, the new bodies have no coordination role vis-à-vis

the Entities, cantonal and Brčko District police forces’ (European Commission

2008a: 56-57).

Accepting what has been already referred to as an ‘agreement on

procrastination’, the green light for the signature of the SAA was nevertheless

granted in June 2008. A EUSR official commented metaphorically: ‘Our

conditionality bar was three meters high, they made a jump of less than one

meter and we took it for good’.96 A similar assessment was offered by the Head

of EUPM. Interviewed in Sarajevo in the same days of the SAA signing

ceremony, General Vincenzo Coppola reconstructed with tough but effective

criticism the developments between the Mostar declarations and the laws for

police reform.

There was no political will or political understanding of what they

could offer to us. None of the political leaders who signed the

Mostar agreement had any idea of what technically they were

signing, nor did they have ideas on how and if they could actually

offer a useful follow up. Because of this weakness, when the

agreement landed on the table of the working group that was

supposed to draft a legislation on the matter, the political and

strategic problems that, it was clear to all of us, had not been solved

in Mostar had to be solved on the table of the working group, which

was impossible. In this situation, what would be the only way out?

To put in place legislation that is extremely weak. They could not

put any flesh around the bones. They created seven new institutions,

fine, but they are empty institutions, because there was no political

will to create strong and effective institutions. The reform was

empty, but it was the only way out to allow them signing the SAA.

Was police reform a true priority for the country? No. Was the SAA

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a priority? Yes. The SAA was a priority because we said that this

country has to go to Europe and we had to move forward to bring it

in.97

Why did Brussels give up on a conditionality that had been so strenuously

promoted? Turning a blind eye was the only possible way for the EU to literally

drop a conditionality that had been badly conceptualized. As Muehlmann (2007:

41) emphasized ‘only when the international community backed away from their

original requests did they manage to get a face-saving, but not viable, solution’.

Moreover, the choice was also motivated by a need to defend the emphasis that

has been attached by the EU to the SAP. The prolonged difficulties of BiH

respecting the pre-conditions had become ‘embarrassing’ for Brussels, since the

stalemate began to show that the technical anchorage of the country via the SAP

was not resolving political tension. As an observer has pointed out, the EU was

trapped in an uncomfortable situation: ‘[t]he collapse of the SAA process would

reflect a failure of the key principle that has guided international policy in the

region over the past years – the notion that the prospect of EU integration will be

sufficient to put aspirant countries on a reform course’ (Vogel 2007).

5.3. ‘Conquered ownership’ vs. ‘octroyée ownership’

The political showdown on police reform in BiH demonstrates that the EU

allowed domestic politicians to ‘perform a conquest’ of the reform agenda. In

other words, the failure of conditionality induced external actors to withdraw

from the main stage of confrontation and to favour the predominance of

domestic actors on the political scene. According to Christophe Solioz, the

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patterns of other internationally-sponsored reforms that were previously

undertaken specifically in BiH also confirm that it was the eventual failure of

conditionality that paved the way for a greater focus on ownership as an

alternative option. Building on this argument, Solioz cites the example of the

state-level Central Bank of Bosnia and Herzegovina (CBB&H) as another case

in which ‘conditionality led to ownership, but more generally it was the failure

of “conditionality” that introduced “ownership” as an alternative approach’

(Solioz 2007: 35-36).

Similarly, police reform represents an area where the failure of

conditionality led to the acceptance of a more flexible and domestically-owned

reform agenda. Specifically, because of the mismanagement of conditionality –

both in its conceptual and enforcement phases – the external agent found itself in

an uncomfortable position. The EU could have promoted at an earlier stage

different items on the reform agenda, thus indirectly admitting its mistake, or it

could have publicly removed the link between police reform and the SAA

agreement. However, a reluctance to give up its ‘no mistake policy’ induced the

EU to maintain its original conditionality until the project became increasingly

untenable and confrontation completely unproductive. Only then were EU

policy-makers forced to give up conditionality and accept a domestically-owned

reform agenda, which was rewarded in spite of its weaknesses and clear

unfeasibility. Ownership was thus portrayed as an achievement, despite the fact

that the eventual reform was not satisfactory.

Against the backdrop offered in this chapter, it is necessary to conclude by

making a clear distinction between the debate on the restructuring of the Bosnian

police (and the related international efforts that date back to the activities of the

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United Nations Mission in Bosnia and Herzegovina, UNMIBH) and the

continuous work of police reform. The latter has been going on since 1995,

through several different steps; these included: initiatives aiming to improve

procedures, modus operandi, and administrative capacity of the police.

Moreover, there have already been two major reforms. One was undertaken in

1996 and concerned the structure of the FBiH police. The other one came two

years later and concerned the RS police. This process of constant reform and

amelioration has allowed substantial and clearly visible improvements. At the

institutional level, the creation of the State Information and Protection Agency

(SIPA) and the unified border police can be considered as relevant

achievements. Such institutional improvements followed a precise logic, and

they were around a genuine technical need: to improve the effectiveness of

policing throughout the country. Interviewed on the issue, the Chief of the EU

Coordination Office at EUPM has admitted that the link between the SAA and

police reform that was instead pushed by the HR/EUSR was close to hinder the

previous efforts for police restructuring. The high-ranking EUPM official

admitted the limitation of the approach sponsored by the EU in 2007:

The logic behind the technical efforts to restructure and rationalize

the police in BiH has been disturbed by the arbitrary decision of

installing conditionality for the SAA on the police reform process.

Moreover, the creation of the three European principles and the

emphasis that was attached to them was not logical. Rather, this has

been totally idiotic. Obviously, when I say idiotic, I do not refer to

the aims of the police reform but to the link with the SAA and to the

way it was highlighted. Another reason to talk about an idiotic

choice is that the police reform has been left in total disconnection to

the effort for the constitutional reform. This conditionality was used

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by the EU as an early-warning, but concretely, it was totally illogical

to use it as a precondition for the initialization of what is nothing but

a free trade agreement. The problem with all this is that the EU so far

has been too agnostic with regards to the reorganization of the

Bosnian state. The EU is and has tried to remain an apparently non-

invasive actor.98

The idea of the EU as non-invasive statebuilder proposed by the EUPM

official is a powerful expression that allows drawing some conclusions on the

analysis thus far developed. Moving from the examination of the EU’s hands-up

stance presented in the previous chapter, we have highlighted the existence of

another side of what has been referred to as the ‘responsibility coin’ of external

statebuilding projects. Moreover, it has been possible to show how dangerous

can be the swing between politics and technocratism that characterized the EU

conditionality over the police reform.

The analysis of police reform is relevant for two aspects. Firstly, it sheds

light on the disinclination of multilateral institutions to admit mistakes and

correct policies. Secondly, it represents another confirmation of the EU’s

inability to solve the two crucial operational dilemmas that international

statebuilding agencies are bound to face: the dilemma of bottom-up vs. top-

down statebuilding (which has been metaphorically referred to as the ‘vertical’

statebuilding dilemma, since it is connected to what type of target international

policies mainly aim to), and the conflict between technically oriented assistance

and a complex post-war stabilization focused on grass-root reconciliation and

the establishment of a definitive socio-political peace (which has been

characterized as the ‘horizontal’ statebuilding dilemma, since instead it refers to

what type of instruments are used by international agencies).

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At the intersections of these two sets of operational choices lays the core

contraposition between technical institution-building and externally-driven

nation-building. The need to create a fluid balance between these two trajectories

represents the main challenge for every statebuilding initiative. When interest in

the former is predominant, international human and financial resources are

mostly invested in the creation of structures that guarantee short-term

achievements. On the contrary, if the latter but more arduous path is privileged,

international institutions would be expected to tune their efforts to implement

policies that respect a long-term vision and focus on socio-economic

development.

The case of BiH, unfortunately, shows that foreign intervention has

rarely found a stable balance. The need for success-stories encourages external

statebuilders to privilege relationships with a selected group of bureaucrats

(mostly educated in Western countries),99 which permits a deferral of

confrontation with a turbulent political class. This ‘more comfortable’ way of

interacting can be traced back to some very basic principles that are a feature of

international missions pursuing highly-intrusive field activities. The recent

history of the Western Balkans shows that once a crisis is under control and

reconstruction has been launched, the prolonged involvement of the international

community is typically justified by the occurrence of small crises and, equally

important, periodic and partial successes. Crises allow a mission to be kept in

place and legitimized in the eyes of the host country population; success stories

make the field efforts justifiable to taxpayers in contributing countries.

Moreover, the sustainability of an international mission is based on its capacity

to perpetuate the above mentioned ‘no mistake policy’. The case of the Bosnian

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police reform provides an interesting example: EU policy-makers did their best

to avoid admitting their shortcomings, up to the point of giving up their

conditionality.

What could be referred to as ‘conquered ownership’ must be

distinguished from ‘octroyée ownership’.100 The latter occurs when international

agencies define the main terms of the reform agenda and genuinely allow

domestic elites, from the very beginning of the process, to negotiate internally

and decide in their own way how to implement it. Instead, the ownership of the

reform agenda is ‘conquered’ when internationals fail to steer a reform process

towards their pre-defined strategic objectives and national elites, exploiting the

mismanagement of conditionality, raise internal confrontation to a critical point.

When the political conflict reaches its apex and domestic instability is of

increasing concern, internationals begin to fear that a break-up is possible and

that responsibility for the crisis must be publicly shared with the recalcitrant

domestic politicians. At this point, external policy-makers are bound to consider

two alternative options: either they can admit to having supported the

conditionality that caused the collapse of the national dialogue on reform, and

negotiate openly a correction of strategy; or, alternatively, they can accept the

lack of progress and favour a silent transfer of responsibilities to domestic elites,

who in turn are expected to act as if they are conquering the ownership of the

reform process with a renewed spirit of cooperation. Needless to say, it is

convenient for both sides that this change does not take place in the form of a

clear top-down concession, but rather appears as a bottom-up affirmation of

domestic ownership over the reform agenda. Once this ideal ‘handover of

convenience’ takes place, the international statebuilding agency can drop the

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specific conditionality without compromising the credibility of the wider reform

project.

6. Conclusions

Analyzing the developments of the EU-sponsored reform of the Bosnian police,

this chapter revealed another side of what has metaphorically been defined as ‘the

responsibility coin’ of international statebuilding projects. The previous pages

highlighted that, no differently than other international agencies deployed in

crises areas, also the EU preserves its own ‘no mistake policy’. International

statebuilding mission try to consolidate their governance and supervision roles by

presenting their policies, conditionality and strategic choices as ‘the good and the

proper’, whose validity cannot be dismissed, even when clear limitations emerge

from implementation processes.

The showdown on police reform demonstrates that this attitude stems

from a variety of factors, most of which are inherent in the same physiology of

international missions, or depend from the multilateral dynamics that take place

at the headquarter. First of all, the rotation of international personnel,

particularly at the highest positions, is a crucial element. As the experience of

Miroslav Lajčák reveals, top-ranking officials with relatively short-termed

mandates are often sent to the field with limited flexibility and they are induced

to defend strenuously the policies and conditionalities promoted by the

organization for which they work, even when these produce negative effects on

the stability of the domestic political arena. In an ideal parallel, the experience of

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Schwarz-Schilling instead confirms that when field officials try to marginalize a

given reform item that is strongly sponsored by the headquarter, they hardly

manage to win sufficient support for a broad renewal of strategies and a

substantial update of the main policy objectives.

Moreover, the lack of time in developing familiarity with a given post-

conflict environment makes leading international officials more vulnerable to the

attacks and accusation that politicians from the host state might attempt. The

difficulties experienced by Miroslav Lajčák during the fall and winter of 2007 in

handling confrontation with the most recalcitrant Bosnian-Serb and Bosniak

politicians have offered a striking example in this regard.

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General Conclusions

1. Implications on theoretical issues

For the last two decades, statebuilding intervention in post-conflict societies and

crisis areas has steadily increased, in terms of both the number of missions

deployed and their intrusiveness in the politico-institutional life of several states

that became ‘in-the-making’ as a result of intervention by the international

community. Accordingly, scholars and policy analysts have become increasingly

interested in two main issues related to the external reconstruction of failing or

failed. Firstly, how can efforts by the international community to rebuild states be

legitimized? Secondly, what are the most effective modalities to rebuild states and

guarantee stable governance by solid domestic institutions?

Following this thread in the scholarly literature and policy analysis, Chapter

I introduced the main features of the debates on the normative aspects of

statebuilding and on the operational challenges of externally-driven

reconstruction. The first part of the chapter provided an account of the evolution

of the idea of sovereignty, key ‘rule of the game’ in international relations to

which theorists have turned in their efforts to identify a plausible ‘ethic’ of

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statebuilding. The second part of the chapter has instead examined the main

operational concerns with which statebuilders are confronted in their actual

policy-making and has identified the existence of three main strategic dilemmas

of intervention in post-conflict scenarios.

The recent theoretical interest around the idea of sovereignty as

responsibility has been an attempt to update the normative pillars on which

intervention in unstable environments can be justified, and the prolonged external

regulation of post-conflict societies can find legitimization. Neo-communitarian

scholars have based their theories on the presupposition that this norm has been

genuinely informing international policy-makers. At the same time, they have

identified a paradox of sovereignty and statebuilding, which provides a theoretical

justification that can be applied to all cases of intervention, and an ethic that can

support prolonged external control over failing or failed states. In contrast with

the view, it has been shown that structural weaknesses in the contemporary

multilateral architecture result in a profound gap between the ambition to

consolidate an efficient system of collective security based on the idea of

responsible intervention and the residual features of the Westphalian system of

sovereign states that have remained the same notwithstanding the exponential

increase in multilateral cooperation.

Reference to the sovereignty as responsibility ideal has become a regular

feature of UN documents – in statements, declarations, and in UNSC resolutions –

and also appears in documents produced by many relevant regional organizations

working in the areas of peacebuilding and statebuilding. However, the

relationship that external policy-makers have with the issue of responsibility

remains troubled one. The gap between abstract conceptualizations and practice

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still remains great. In order to narrow it, and assess to what extent this new

normative proposal is becoming a driving principle that informs practitioners, this

dissertation has examined a specific statebuilding project.

Against this backdrop, one principle question has been addressed. What

normative understanding of sovereignty and what vision of post-conflict

stabilization have been driving the specific efforts of the EU as a statebuilder?

Chapter II has highlighted the ‘paradox within the paradox’ of sovereignty and

statebuilding as practiced by the EU. Since the prospect of EU membership was

formally extended to BiH, Brussels has pushed this ‘potential candidate country’

– to use the jargon of the EU Commission – along a very particular stabilization

path. The progressive process of EU-driven statebuilding has produced a

paradoxical situation. A post-nation state organization based on a system of

pooled sovereignty – the EU – is preparing a state that is still in-the-making to

relinquish crucial sovereign prerogatives when the time to join the Union arrives.

Rather than focusing on statebuilding strictu senso and the full restoration

of domestic authority, the rehabilitation trajectory designed for the specific EU

member-statebuilding aims to absorb critical aspects of the target state

sovereignty. Nonetheless, BiH remains an incomplete statebuilding project, a

weak state that still needs to be strengthened in the full and efficient exercise of

its domestic sovereignty capabilities. Moreover, stability in the country is still

threatened by a tense domestic sovereignty struggle between representatives of

the three main ethno-religious elites previously at war: Muslim Bosniaks,

Catholic Croats, and Orthodox Serbs.

EU-driven statebuilding in BiH is presented as a more complex project

when compared with ‘ordinary’ internationally-led missions for the institutional

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stabilization of failing or failed states. In today’s BiH, the constraints on self-

governance are imposed not with a view to the full restoration of sovereignty;

rather, Brussels is preparing this multiethnic polity with the objective of Euro-

Atlantic integration and in the inherent conviction that by dissolving aspects of

Bosnian sovereignty into a supranational construction, even the most profound

fracture lines are bound to disappear. In simple terms, the externally driven

reorganization of the state is directed towards a supranational project, and thus is

conducive to a future dilution of sovereignty.

While pursuing this project, the EU has undoubtedly exercised a positive

influence on the country: European integration represents the only issue on which

local elites unconditionally agree. Together with NATO membership, the EU has

offered the only credible perspective that, even if indirectly, has so far

successfully contained the centripetal forces that characterize the Bosnian

multiethnic and multi-religious context. Political and institutional stabilization

remains nevertheless a distant prospect. At all levels, sovereignty is contested

between the representatives of the three ethno-religious factions formerly at war.

Ranging from the central state down to cantonal and even municipal level, this

confrontation has been defined in this dissertation as a ‘multilevel sovereignty

struggle’.

Aware of these problems, the EU has relied on the instruments provided

by the SAP, in an attempt to limit the direct intrusiveness of its powers and to

minimize as much as possible the risks related to the complex constitutional

restructuring of the country. Moreover, in the course of almost ten years of EU-

driven statebuilding in BiH, external policy-making has been accompanied by a

consistent emphasis on the importance of ownership and democratization, in

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addition to the obvious references to economic development. All of these

methodological precautions adopted by the EU are based on the inherent

conviction that the numerous internal fractures of the country will eventually be

healed once Bosnian sovereignty is pooled – and thus partially diluted – in the

greater European supranational construction.

Identifying this fundamental characteristic that differentiates EU member-

statebuilding from other exercises of externally-driven stabilization in crisis areas,

this thesis has approached the EU commitment to BiH with the overall aim of

highlighting Brussels’ contradictory stance as a statebuilder and with a view to

reconstructing not only the most relevant normative aspects, but also the

operational peculiarities of such a complex undertaking. BiH is an optimal case

study for understanding the principles that inspire EU stabilization efforts in the

Western Balkans region as a whole, and the operational limitations which it faces.

Moreover, this investigation has highlighted the strategic and methodological

differences between internationally-driven (UN-led) statebuilding, EU member-

statebuilding, and some of the key strategic features that characterize US-led

initiatives for the external regulation of failing and failed states. In particular, it

has been shown that while Washington invests in statebuilding enterprises to

multiply the number of its allies and consolidate its global network, Brussels

pursues a more sophisticated and idealistic goal. In other words, this thesis argues

that while Washington consolidates its global influence and promotes

consolidation through states, Brussels focuses on the consolidation of its regional

influence on states.

The investigation into the normative understanding of sovereignty and

post-conflict stability at the basis of the current EU involvement in the Bosnian

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political context has shown that direct policies for political reconciliation are only

marginally on the EU’s agenda for this complex multiethnic polity. In the logic of

EU policy-makers, BiH can be rescued if it is anchored through the SAP to the

EU integration process. Specifically, the SAA – with all of its mechanisms,

negotiations, and deadlines – is perceived as an instrument that can create a

positive ‘chain reaction’. Once the process is launched, Bosnian political

representatives are confronted with the inherent contradictions of their

institutional structure and they are expected to spontaneously reform, readapt, and

rationalize the Bosnian state. It is thus a widely-held view in Brussels that the

SAA implementation process should be sufficiently demanding that it forces

Bosnian elites to undertake reforms.

Even if it is mainly an economic instrument designed to open up the market

of the recipient country to European products, the SAA is perceived by policy-

makers in Brussels as an adequate instrument to encourage Bosnian elites to

pursue substantial reforms in all core policy areas. Specifically, the SAA was

designed by the EU to be a mechanism aimed at: ‘supporting efforts to strengthen

democracy and the rule of law in Bosnia and Herzegovina; contributing to

political, economic and institutional stability in BiH and in the wider region;

providing a framework for political dialogue, allowing for the development of

close political relations between the EU and BiH’ (European Council 2008b). The

SAA represents the key instrument of what has been referred to as a ‘statebuilding

by induction’ process or, put another way, it could be said to reflect a

‘statebuilding by the backdoor’ methodology.

Given its structural peculiarities, and a certain institutional predisposition to

distance itself from political processes, it can be concluded that the EU

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involvement in BiH and the rest of the Western Balkans remains incomplete. The

EU modus operandi in BiH continues to be exposed to the residual influence of

the US. It is not by coincidence that since July 1997 the position of Deputy High

Representative in BiH has constantly been held by a senior US diplomat, who has

been in constant open confrontation with local elites. At the same time, EU-driven

statebuilding in BiH is conditioned by the attitude of European states which,

while holding a seat in the PIC-SB, do not invest sufficient diplomatic resources

in Brussels to promote political consensus on BiH at the European Council.

For instance, the attempts at quiet mediation undertaken in 2007 by

HR/EUSR Schwarz-Schilling (which were oriented in principle towards political

reconciliation and in practice towards the creation of a sustainable framework for

constitutional reform) were not backed up with sufficient political support by the

Council. It is too early to say whether placing so much confidence in technically-

driven changes is a risky choice or not; however, it seems unlikely that there will

be any substantial positive institutional change until the Bosnian stabilization

process is backed up with renewed diplomatic energy and more coordinated

political action from Brussels. To be sure, the EU integration process helps to

‘depoliticise’ many sensitive issues (Belloni 2007: 155). However, the continued

marginalization of politics in the process that leads to integration might eventually

undermine the final outcome. The prolonged absence of a structured strategy for

reconciliation – both at political and societal levels – has resulted in an increased

polarization between the three main ethno-religious groups in the country.

With a view to demonstrating that the EU follows a very peculiar ‘ethic’

and modus operandi when it comes to statebuilding policies in its near abroad,

particular attention has been paid to the main processes that dominate the reform

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agenda in BiH and the ways in which Brussels has approached them. The analysis

demonstrates that the sovereignty issue is often employed as a smoke screen by

EU policy-makers, in the attempt to mask their inability to agree at the level of 27

– beyond a general consensus on the need to pursue the enlargement process – on

coherent specific stabilization policies. Moreover, it has been shown that the EU’s

particular approach to statebuilding stems from an imperial attitude to the

enlargement process.

As argued in Chapter III, the cautiousness with which the EU has

approached the issue of constitutional reform in BiH – from the early days of its

field presence in the country up until the present time – demonstrates that the

conventional understanding of sovereignty is an argument on which EU

statebuilders rely for strategic reasons. The emphasis that the EU places on the

need to respect domestic sovereignty reveals a genuine paradox. The promotion of

a classic sovereign ideal is maintained while, at the same time, domestic

sovereignty is on the one hand subjected to continued and internationally

institutionalized violations and, on the other, is projected towards an alternative

model based on the predominance of formal and informal supranational networks

over domestic ones.

This analysis confirms Stephen Krasner’s argument that sovereignty is

‘organized hypocrisy’ (1999b), as well as his specific conclusions on the gap

between what statebuilding is said to be and how in reality such projects are

carried out by external actors in failing or failed state (Krasner 2004). The EU

experience in BiH confirms that the idea of sovereignty is strategically

manipulated with a view to presenting external peacebuilding activities as being

always ‘appropriate’. As an example of this tendency, reference has been made on

269

the EU’s hands-up statebuilding attitude. This metaphor has been employed to

describe the tendency of EU policy-makers to distance themselves from

uncomfortable political responsibilities and to ignore deviations from the ideal of

responsible intervention. The predominance of the hands-up attitude amongst EU

policy-makers finds confirmation in the experience of HR/EUSR Schwarz-

Schilling. The way in which ‘European’ political support was slowly withdrawn

from the German HR/EUSR is emblematic.

Testing the ideal of shared responsibilities on a more operational and

policy-oriented ground, the analysis in Chapter IV focused on a concrete aspect of

external policy-making. Two main questions have been addressed in this regard.

Firstly, do statebuilders take responsibility for all of their actions, including their

mistakes? Secondly, do statebuilders learn from their mistakes and correct

ineffective policies in a timely manner? An attempt to answer these two

interrelated questions has been made by employing another metaphor – ‘hands-off

statebuilding’. This expression describes the EU’s approach of pursuing the

reorganization of Bosnia’s incomplete and contested sovereignty via partial and

apparently technical reforms. In concrete terms, this strategy serves two purposes.

On the one hand, it facilitates preservation of those ideals of gradualism and

functionalism that have been features of the EU integration process since the early

post-WWII period. On the other, the hands-off modus operandi has helped to

overcome a substantial limitation that has characterized the intra-EU

multilateralism: the lack of strategic political consensus in the Council and the

institutional frictions between the Council, the Commission and, to a degree, the

EP.

270

Reference to the idea of a ‘hands-off’ attitude has also been made with a

view to showing that the actual sharing of responsibilities is difficult if not

impossible to reconcile with the structures, customs, and unwritten rules of

international missions in a post-conflict environment. External actors have

devoted significant attention to the issue of responsibility. But they do so with the

aim of off-loading their responsibilities and minimizing risks; in particular, the

risk of a loss of public legitimacy for their presence on the ground. This

legitimacy is based on two distinct pillars: the first is determined by the

relationship between the field presence and headquarters, the second stems from

the interactions of the field presence with both the political elite and constituent

people of the host state. It is notable that this tendency can be identified even in

the case of the EU, which has a more sophisticated objective than other

multilateral organizations: that of welcoming target states into its supranational

integration structures.

The history of EU-sponsored police reform in BiH is an interesting case of

mismanaged conditionality that has been analyzed precisely in order to identify

the main features of the EU hands-off statebuilding stance. An examination of this

reform process reveals the difficult confrontation between internationals (in this

case, EU officials) and local elites. The police reform shows that the

mismanagement of external conditionality induced the external agent, the EU, to

accept a more flexible, weaker, but domestically-owned reform agenda. This

conditionality sparked one of BiH’s most serious crises in its post-Dayton history.

With the credibility of the whole European integration project for BiH at risk, the

EU decided to refrain from further confrontation with domestic elites and dropped

271

its most critical demands, thus allowing local politicians to ‘perform a conquest’

of the reform agenda.

This thesis posits that reluctance to give up on a ‘no mistake policy’ induces

international agents to defend conditionality to the point that a project becomes

almost untenable. At this point, internationals prefer to relinquish conditionality

and accept a domestically-owned reform agenda, which is rewarded in spite of

inherent weaknesses or clear unfeasibility. Ownership is thus presented as a

successful outcome in itself, even if the resulting reforms are not in the least

satisfactory. Much like other international agencies deployed in crises areas, the

EU demonstrates a tendency to preserve its own ‘no mistake policy’ at all costs.

2. Policy implications

What does it mean to share responsibilities in a project of state reconstruction?

The concept of shared responsibilities has a twofold dimension when it is applied

to international intervention. On the one hand, there is a moral imperative to

launch multilateral efforts in a timely manner when a crisis situation threatens

lives. As the trend of post-Cold War history has shown, the UN’s ability to

establish an effective international presence in crisis areas has significantly

increased. Unfortunately however, there are still cases – such as Somalia – that

confirm the general reluctance of states to intervene in situations of state collapse

where the associated risks are high and where strategic interests, other than the

general ideal of promoting peace, are limited. On the other hand, the question of

responsibility comes to the fore once an international mission has been deployed

272

on the ground. The particular ‘degree’ of responsibility relates to both the policies

promoted by international missions in the areas under their supervision and their

conduct in the field.

The analysis of the Bosnian case allows elaborating broad policy

prescriptions and lessons-learned that could be applied to other cases of

statebuilding. For instance, amongst others lessons that can be drawn from fifteen

years of highly-intrusive intervention in BiH, an important conclusion is that

ethno-religious fractures tend to crystallize in the absence of a systematic attempt

to promote structured reconciliation policies at both political and societal levels.

However, since the issue of shared responsibilities represents the red line of this

dissertation project, a final policy remark is warranted about the proposal to

institutionalize shared sovereignty agreements. These frameworks for

statebuilding projects should facilitate the establishment of a clear division of

labour, duties, and responsibilities among international practitioners and local

elites.

Shared sovereignty agreements or the formal establishment of a protectorate

could enhance the degree of control and accountability of international missions.

As Krasner (2004: 108) points out, the establishment of clear rules and the

definition of specific responsibilities ‘would allow actors to obfuscate the fact that

their behavior would be inconsistent with their principles’. The empirical findings

that have been presented here demonstrate that even the EU – which pursues

through its member-statebuilding initiatives a series of sophisticated ideals on

regional peace and reconciliation – has had a troubled relationship with the issue

of sharing responsibilities. In common with other multilateral missions committed

to statebuilding projects, the EU has a tendency to ‘technify’ the relationship with

273

the target state and pursue partial achievements that concern mostly the

institutional dimension rather than focusing on the stabilization of the society and

the domestic political environment.

Shared sovereignty agreements can play an important role in clarifying the

responsibilities of external policy-makers vis-à-vis local elites. An argument that

has recently gained ground amongst practitioners is that by increasing the

capacities of regional organizations, it will be possible to ensure a greater degree

of local ownership of stabilization processes and peacebuilding efforts. While this

may appear a ‘noble’ long-term objective, a simple transfer of responsibilities to

regional organizations is not in itself a solution. Rather than increasing the sense

of responsibility in multilateral missions engaged in peacebuilding initiatives, this

approach may simply enable developed countries to off-load their responsibilities

onto their weaker neighbors.

The increased use of shared sovereignty agreements could also serve the

purpose of depriving recalcitrant local elites of an argument that is often

employed by them in the blame game with the international community: as the

detailed account of the showdown between the RS leadership and the OHR

demonstrates, domestic nationalist politicians tend to complain obsessively that

the international community keeps the host country in a status of de facto

protectorate that has no legitimization and, for this reason, justifies intransigent

positions.

274

3. Perspectives on future research

This analysis of the Bosnian context has opened the way for other comparative

studies into international statebuilding interventions. Remaining within the sphere

of EU member-statebuilding in the Western Balkans, for example, Kosovo and

Macedonia present the most interesting cases for immediate comparison with the

experience of reconstruction in BiH. Moreover, this thesis also points to some

other potentially interesting avenues for exploration. Firstly, the findings show

that there is scope for more research in this relatively new field, which might be

referred to as the ‘sociology of international missions’. The process that leads to

the establishment of an international mission in a crisis area is often overlooked

by analysts. Observers tend to monitor the activities of an international mission,

but only limited attention has been paid to the political dynamics that lead to its

establishment, the negotiation process for the definition or modification of its

mandate, and issues concerning the selection and management of the human

resources deployed on the ground.

Secondly, this dissertation has shown the need for further analysis into the

issue of ‘policy adaptation’ by international missions. Do international missions

recognize their mistakes and change their policies accordingly? This is a crucial

question that is directly linked to the issue of adjustments in external

conditionalities. Some research in this field has already been undertaken, but

predominantly on the management of conditionalities by development agencies or

international financial institutions, such as the IMF and World Bank. Very limited

attention has thus far been paid to policy development and change by international

missions dealing with security-related issues and political affairs.

275

Thirdly, the specific focus on EU attempts at member-statebuilding and the

assessment of the difficulties that the EU encounters in its internal policy-

planning represent an interesting basis on which to launch an examination of the

EU decision-making processes in the post-Lisbon era. The establishment of the

external action service and a new division of labour between the Commission and

the Council are imminent. It is to be hoped that the EU will learn to act

collectively, affirm its geopolitical primauté in its near abroad, and eventually

overcome its ‘Jacques Poos’ complex101 also in other regions of the world, where

its stabilizing influence could play an important role in guaranteeing peace and

stability. The EU is already an example of a successful model for the

consolidation of regional peace and the promotion of opportunities for economic

prosperity; it is time that it takes its rightful place as a responsible international

actor as well.

276

(Appendix A)

Framework Interview Questions

1. Can you identify the key issues related to the reorganization of sovereignty in

BiH?

2. Could you briefly list what are the specific responsibilities of ‘international

statebuilders’ towards BiH today?

2.1. What is the specific role of the EU in the Bosnian stabilization process?

2.2. What is the role of the United Nations?

2.3. What is the role of other states (e.g. the United States, Russia) or relevant

regional actors?

3. Who is sovereign in BiH today and who should be sovereign?

3.1. If the people are sovereign, would you consider a referendum on the

integrity of the Bosnian state or a vote on secession in Republika Srpska as

a legitimate, suitable, and appropriate exercise of popular sovereignty?

3.2. If we consider the ‘sovereignty of the people’ as an ideal and sovereignty de

facto lays in the government (or the constitution), how much work does BiH

still need to be, so to say, normalized as a functional sovereign state?

277

4. Have you considered the possibility that the Bosnian experiment might fail?

4.1. If yes, what are the elements that induced such a fear?

4.2. If not, why do you think this is impossible?

5. What would be the consequences of a failure of the Bosnian experiment?

5.1. What specific consequences would there be on European security?

5.2. What specific consequences would there be on the credibility of the EU?

6. If Bosnian political elites show no substantial progress in the reform talks and in the

constitutional debate, do you think that the whole Bosnian project should be

reconsidered?

7. Can BiH go to Brussels without leaving Dayton? In other words, do you think that

the EU could integrate, ‘save’, and interact in efficient ways with BiH without a

substantial consolidation of power and authority in favor of the central governing

Bosnian institutions?

7.1. If yes, what role do you assign to multi-level governance practices and EU

pooled sovereignty?

7.2. If not, how much consolidation of power and sovereign prerogatives

towards Sarajevo are still needed?

7.3. Do you think this would be ‘fair’ in terms of sovereignty?

278

8. What do you foresee as the outcome of the Bosnian statebuilding experiment?

8.1. How do you perceive your contribution to achieving such an outcome?

9. Why has the EU in BiH taken all the responsibilities formerly attributed to the UN

and NATO?

9.1. How much has the US disengagement from the Balkans influenced the

increased EU presence?

9.2. To what extent is this commitment connected to security concerns in

Western Europe?

9.3. How much to the consolidation of the EU as a foreign policy actor?

10. How would you define the EU prospect of membership as a tool for indirect

stabilization and soft power?

11. Could you say that the EU prospect is successfully “bridling” the centripetal forces

characterizing the Bosnian political environment?

12. Why do we keep the double-hat (and therefore the double chain of command) on

the HR/EUSR?

12.1. How much was the choice determined by lack of unitary view at the EU?

279

12.2. How much was this is linked to the uncertainties determined by the

independence of Kosovo?

13. The EU seems to look at the SAA as to an automatic process that can unhinge the

most critical Bosnian institutional weaknesses. Do you think this approach is

correct and it will actually be successful?

13.1. If yes, don’t you think this technocratic way dangerously excludes or, to say

the least, marginalizes politics?

13.2. If not, could you elaborate on your answer?

14. Could you elaborate on the alternative strategies for constitutional reform in BiH

that the EU has tested while instead the April Package was promoted under strict

US supervision?

15. In which respect does the EU approach to member-statebuilding in BiH differ from

the strategies of the US for the reorganization of the Bosnian state structure?

16. What are in your opinion the main differences of approach between the US and the

EU to making external pressures on the Bosnian elites specifically for the

constitutional reform?

17. What are the strategic goals of the EU-sponsored police reform in BiH, if any?

280

(Appendix B)

List of Interviewees

Mr. Michael Aldaya, Albania, Bosnia & Herzegovina Programme Manager and

Assistance Desk Officer for Bosnia-Herzegovina, DG Enlargement, EU Commission (Brussels, September 2007).

Mr. Tommaso Andria, Deputy Head of Mission at Italian Embassy to BiH (Sarajevo, November 2007).

Ms. Nadine Athanassiadou, Counselor at the Permanent Mission of Greece to the EU, participant to the COWEB (Brussels, September 2007).

Mr. Šukrjia Bakšić, University of Sarajevo (Sarajevo, June 2007).

Mr. Jan Bayart, Counselor at the Permanent Mission of Belgium to the EU, participant to the COWEB (Brussels, September 2007).

Mr. Arno Behrens, Sec. Adj. at the Permanent Mission of Germany to the EU, participant to the COWEB (Brussels, April 2007).

Ms. Andrea Berdesinski Counselor at the Permanent Mission of Germany to the EU, participant to the COWEB (Brussels, April 2007).

Ms. Arina Beslagic, BiH Ministry of Security (Sarajevo, June 2007).

Ms. Talija Boati, Democratization - Working Table 1 Stability Pact for South-eastern Europe (Brussels, May 2007).

Mr. Detlev Boeing, Principal Administrator, Policy Coordination Unit, DG Enlargement, EU Commission (Brussels, July 2007).

Ms. Giovanna Bono, Administrator, Subcommittee on Security and Defence at EP (Brussels, November 2007).

281

Ms. Anica Brooks, Adviser at the EP (Brussels, December 2007).

Mr. Vincent P. Carver, US Permanent Representation to the EU (Brussels, November 2007).

Mr. Gabriele Cascone, Euro-Atlantic Integration and Partnership Directorate, NATO (Sarajevo, June 2007).

Mr. Mauro Conciatori, Counselor at Italian Permanent Mission to the EU, participant to the COWEB (Brussels, March 2007).

Mr. Vincenzo Coppola, Head of Mission at EUPM (Sarajevo, December 2007 and June 2008).

Mr. Aleksandar Damjanac, Delegation of BiH to the EU (Brussels, September 2007).

Mr. Renzo Daviddi, Head of the European Commission Liaison Office to Kosovo (Pristina, December 2007).

Mr. Emir Demirovic, BiH Council of Ministers (Sarajevo, June 2007).

Mr. Fabrizio Di Michele, Counselor at Italian Permanent Mission to the EU, participant to the COWEB (Brussels, October 2007).

Ms. Anela Duman, Policy Consultant at CPM Group (Sarajevo, June 2007).

Mr. Steffen Elgersma, Euro-Atlantic Integration and Partnership Directorate (Brussels, September 2007).

Mr. Alessandro Fallavolita, Head of Mission, Italian Embassy to BiH (Sarajevo, December 2007).

Mr. Mark Fleming, Political-Military Officer at US Embassy to BiH (Sarajevo, November 2007).

Mr. Tobias Flessenkemper, Chief of EU Coordination Office at EUPM (Sarajevo, December 2007).

282

Ms. Sabine Freizer, Director of the Europe Program at International Crisis Group (Brussels, November 2007).

Mr. Orlando Fusco, Political Advisor, EUSR (Sarajevo, June and December 2007).

Mr. Michael Giffoni, Council Secretariat, Policy Unit, Western Balkans Task Force, Policy Unit of the EU Council Secretariat (Brussels, June and December 2007).

Mr. Luca Gori, Counselor at the Permanent Mission of Italy to the EU, participant to the COWEB (Brussels, March 2007).

Mr. Drino Galičić, Legal Advisor to the EU Special Representative (Sarajevo, December 2007).

Mr. Damir Gnjidić, Legal Advisor for Public and Administrative Law at OHR (Sarajevo, December 2007).

Mr. Vedran Hadžović, Central Electoral Commission, Bosnian National Parliament (Sarajevo, June 2007).

Mr. Mudzahid Hasanbegovic, Legal Adviser at EUSR (Sarajevo, December 2007).

Ms. Anna Ibrisagic, Swedish MEP (EPP-ED, DE) member of the Foreign Affairs Committee and Sub-Committee for Security and Defence (Brussels, October 2007).

Ms. Tatjiana Jancević, Deputy Chief Legal Advisor at EUPM (Sarajevo, December 2007).

Ms. Barbara A. Leaf, Head of the Political Section at the US Embassy to Italy (Rome, November 2009).

Mr. Gianni La Ferrara, Policy Consultant at CPM Group (Sarajevo, June 2007).

Ms. Alessandra Londero, Deputy Chief of Political Unit at EUPM (Sarajevo, December 2007 and June 2008).

Mr. Steve Lee, Legislative Strengthening Program, OSCE Mission to BiH (Sarajevo, June 2007).

283

Mr. Stephan Lehne, Director and EU special envoy for the Kosovo status talks, Policy Unit of the EU Council Secretariat (Brussels, October 2007).

Ms. Maja Lolić, Political Advisor, Office of the EU SAA Negotiator Team (Protaras - Cyprus, April 2007).

Ms. Catriona Mace, Counselor at the Permanent Mission of the United Kingdom to the EU, participant to the COWEB (Brussels, May 2007).

Ms. Angela Marques De Athayde, Unit 1 Albania, Bosnia & Herzegovina Project Manager - policy desk officer horizontal coordinator, DG Enlargement, EU Commission (Brussels, September 2007).

Mr. Joseph Marko, Adviser for Legal Affairs at EUSR and former Judge of the Bosnian Supreme Court (Sarajevo, June 2007).

Mr. Dusko Maslesa, PDP Bosnia and Herzegovina (Sarajevo, June 2007).

Mr. Emir Mehemedovic, BiH Ministry of Defence (Sarajevo, June 2007).

Mr. Žiga Mirvad, Political Assistant, US Embassy to BiH (Sarajevo, November 2007).

Ms. Rasa Ostrauskaite, Council Secretariat, Policy Unit, Western Balkans Task Force Policy Unit of the EU Council Secretariat (Brussels, May 2007).

Ms. Doris Pack, German MEP (EPP-ED, DE) Member of the Foreign Affairs Committee and Chair of the EP Delegation for South-East Europe (Brussels, July 2007).

Mr. Nenad Pandurevic, BiH Ministry of Foreign Trade (Sarajevo, June 2007).

Ms. Sladjana Pantelic, Counselor at the Permanent Mission of The Netherlands to the EU, participant to the COWEB (Brussels, December 2007).

Mr. Gernot Pfandler, Counselor at the Permanent Mission of Austria to the EU, participant to the COWEB (Brussels, May 2007).

Mr. Sanjin Plakalo, Researcher, Working Table 1, Stability Pact for South-eastern Europe (Brussels, May 2007).

284

Mr. Alessandro Rotta, Cabinet, Political Advisor Stability Pact for South-eastern Europe (Brussels, October 2007).

Mr. José L. Sanchez Alegre, Desk Officer for Bosnia, DG Enlargement, EU Commission (Brussels April 2007).

Mr. Lucio Valerio Sarandrea, Legal Adviser on Judicial and Legal Reform OSCE Mission to BiH (Sarajevo, December 2007).

Ms. Seemab Sheikh, Counselor at the Permanent Mission of Denmark to the EU, participant to the COWEB (Brussels, September 2007).

Mr. Lars Schimdt, Counselor at the Permanent Mission of Sweden to the EU, participant to the COWEB (Brussels, April 2007).

Mr. Stephan Simosas, Officers for political affairs in BiH, DG Enlargement, EU Commission, (Brussels, April and November 2007).

Ms. Kypriani Stavrinaki, Counselor at the Permanent Mission of Cyprus to the EU, participant to the COWEB (Brussels, April 2007).

Mr. Hannes Swoboda, Austrian MEP (PSE) Member of the Foreign Affairs Committee and vice-Chairman of the Delegation for relations with the countries of South-East Europe (Brussels, December 2007).

Mr. Charles Tannock, British MEP (EPP-ED, DE) member of the Foreign Affairs Committee and of the EP Delegation for South-East Europe (Brussels, October 2007).

Mr. Boris Tihi, University of Sarajevo (Sarajevo, June 2008).

Ms. Miriam Toplanska, Institution Building, TAIEX, TWINNING Project Manager, DG Enlargement, EU Commission (Brussels, September 2007).

Mr. Ahmed Turkic, Personal Assistant to the EU SAA Negotiator (Sarajevo, December 2007).

Mr. Archie A. Tuta, Head of Strategy and Planning, OHR (Sarajevo, June 2007).

285

Mr. Mark Wheeler, OHR Liaison Officer, OSCE Mission to BiH (Sarajevo, June 2007).

Mr. Giulio Zanni, Political Adviser at EC Delegation to BiH (Sarajevo, June 2007).

Mr. Alessio Zuccarini, Principal Political Advisor and Deputy Head of Mission at EU Planning Team for Kosovo (Pristina, December 2007).

286

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Notes

1 The DPA was initialed on 22 November 1995 at the ‘Wright-Patterson’ Air Force Base in Dayton, Ohio (USA) after twenty days of formal negotiations. The agreement was then signed in Paris on 14 December 1995. The DPA is formally titled General Framework Agreement for Peace in Bosnia and Herzegovina. In some scholarly publication, as well as in some official documents, it therefore appears with the other acronym ‘GFAP’. See http://www.ohr.int/dpa/default.asp?content_id=380

2 For further details and information, see http://www.crs.state.gov/

3 That of ‘international community’ can be a vague and tricky term if it is used without the proper clarifications. In this thesis, the concept of international community is employed to summarize the complex firmament of intergovernmental organizations and states. When the expression is followed by the specification ‘in BiH’, it refers to all the intergovernmental organizations (including military organizations and missions) that operate in BiH, as well as to the totality of the diplomatic community posted in BiH.

4 European Security and Defence Policy.

5 For further information on the European External Action Service (EEAS) see http://eeas.europa.eu/background/index_en.htm

6 After the entry into force of the Lisbon Treaty all Delegations of the Commission abroad have become Delegations of the European Union (EUDEL).

7 COWEB gathers twice a week in Brussels. On average, twice a month the so-called ‘COWEB Capitals’ gathers all the Directors (in most cases for EU Integration) from the national foreign ministries. Western Balkans affairs are also covered by the Political and Security Committee (PSC or COPS, according to the widely used French acronym) that twice a week gathers diplomats at ambassadorial level from each EU member states’ permanent representations in Brussels, as well as senior officials from the External Relations DG (Relex) of the Commission. It is now customary at the EU Council that, when issues are of particular relevance, the work of COREPER II is prepared directly by COPS, at least for the most general guidelines. When this happens on a given issue, COWEB is usually asked to develop concrete proposals on the technical and implementation aspects of the general policies agreed upon by COREPER II.

8 The Permanent Representatives Committee works in two configurations: the so-called Coreper I is composed of the deputy permanent representatives and deals with technical dossiers; the Coreper II instead gathers all the ambassadors and deals with all political, economic or institutional matters. For further details, see http://europa.eu/scadplus/glossary/coreper_en.htm

9 For a juridical analysis of the functional decentralization of the international system, see Ronzitti (2004: 5-7).

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10 For further elements on the humanitarian intervention debate, see (Chopra 1992; Lyons 1995; Bettati 1996) For more recent analyses, see (Ayoob 2002; Bellamy 2003; Holzgrefe 2003; Bastian 2005)

11 The commitment to prevent and responsibility to rebuild are extensively elaborated in the report of the ICISS (2001: 19-28, 39-46). Further clarifications on these concepts will be provided in section 2.2.

12 For more detailed elements also see Etzioni (2004).

13 In Annex 1-B (Art. V) of the DPA, which is dedicated to the negotiations on a regional arms control agreement, there is the famous expression ‘regional balance in and around the former Yugoslavia’.

14 Interview with Michael Giffoni, EU Council (Brussels, 30 March 2007).

15 Interview with Michael Giffoni, EU Council (Brussels, 4 May 2007).

16 The PIC gathers fifty-five members, including both states and international organizations. The PIC-SB includes the following members: Canada, France, Germany, Italy, Japan, Russia, United Kingdom, United States, the Presidency of the European Union, the European Commission, and Turkey. The latter sits in the PIC-SB also as representing the Organization of the Islamic Conference. At the first Peace Implementation Conference – which was hosted by the UK in London on 8-9 December 1995 – the PIC-SB was created to act as ‘the executive arm of the PIC’ (OHR 2006). The PIC-SB is convened by the HR once every week in Sarajevo at the level of Ambassadors. The PIC-SB gathers at the level of Political Directors every three months in average. Most of these meetings take place in Brussels. Apart from defining the key role of the PIC-SB, the London 1995 Conference provided an occasion to debate four main areas of the upcoming peace implementation process in post-war BiH: coordination mechanism, humanitarian assistance, political sector (including vote monitoring), and assistance for rehabilitation.

17 Interview with José L. Sanchez Alegre, DG Enlargement - EU Commission (Brussels, 4 June 2007).

18 Interview with Counselor Lars Schmidt, Swedish Permanent Mission to the EU and member of the COWEB (Brussels, 22 May 2007).

19 For further details on the handover between NATO and the EU, see Eichberg (2004b: 27-34).

20 During the Ottoman Empire, the Viziers were representatives of the Sultan in the provinces of the Empire. The ‘Grand Vizier’ was instead serving in Istanbul as sort of Prime Minister.

21 The ICTY sentenced Biljana Plavšić to eleven years in prison for war crimes (ICTY 2003).

22 Interview with a former OHR official, employed at the OHR legal office in 1998-1999 (Sarajevo, 11 June 2008).

23 Interview with Tobias Flessemkemper, EUPM (Sarajevo, 21 November 2007).

24 Interview with Stephen Simosas, DG Enlargement - EU Commission (Brussels, 11 November 2007).

25 For a detailed analysis of the institutions, the procedures and the balances designed at Dayton for the Bosnian state, see Ridinò (2001: 125-132).

26 For further information, see http://ec.europa.eu/world/enp/index_en.htm

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27 Interview with Steve Lee, OSCE Mission to BiH and chair of the Ottawa sessions of the ICISS (Sarajevo, 22 June 2007).

28 For further information, see http://www.ardanw.org/

29 For further information, see http://www.nerda.ba/

30 For further information, see http://www.redah.ba/

31 For further information, see http://www.rez.ba/

32 For further information, see http://www.serda.ba/

33 Interview with Maja Lolić, Office of the Bosnian EU SAA Negotiator (Protaras - Cyprus, 22 April 2007).

34 Interview with Šukrjia Bakšić, University of Sarajevo - Faculty of Law (Sarajevo, 26 June 2007).

35 Formulas like the one above are encompassed in the program and the rhetoric of the RS premier’s party, the Alliance of Independent Social Democrats (SNSD), but are made explicit also by other political groups. For instance, the Party of Democratic Progress (PDP, founded by and still run under the guidance of Dragan Ivanić) identified the motto “Europe, the house of the future” as first pillar of its strategy. Commenting on this choice, a member of the party’s executive board admitted: “The first point of our new strategy makes explicit what is actually clear since 1999, which was the beginning of our activity. We defined ourselves as an ‘EU-party’, whose main objective is the integration of RS and BiH into European networks and the EU”. Interview with Dusko Maslesa, Party of Democratic Progress (Sarajevo, 22 June 2007).

36 Started in April 1992, the siege of Sarajevo by the Serb militias was ended in February 1996.

37 The report, adopted by the Venice Commission at its 62nd plenary session, was drafted by five rapporteurs: Mr. J. Helgesen (Member, Norway), Mr. J. Jowell (Member, United Kingdom), Mr. G. Malinverni (Member, Switzerland), Mr. J. C. Scholsem (Member, Belgium), and Mr. K. Tuori (Member, Finland).

38 For further information on the issue, cf. Chapter III section 4.2.

39 These interviews have been conducted in Brussels and in BiH. The list of interviewees includes both permanent staff and seconded personnel at the Brussels offices of the EU Commission and Council; diplomats from the member states employed at their respective national permanent missions to the EU and serving in the COWEB (the committee that prepares the work of the COREPER on the Western Balkans); officers employed at the various EU offices in BiH, at the OSCE Mission to BiH, and at the OHR/EUSR; members of the European Parliament (MEPs).

40 Interview with an Official from the EU Council Policy Unit (Brussels, 22 May 2007).

41 Interview with Counselor Lars Schmidt, Swedish Permanent Mission to the EU and member of the COWEB (Brussels, 22 May 2007).

42 Interview with Stephen Simosas, DG Enlargement - EU Commission (Brussels, 8 June 2007).

43 Sepp Kusstatscher (MEP), 9th EP-BiH Inter-parliamentary Meeting (Brussels, 28 June 2007).

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44 For further details on the various steps listed in the EU Road Map for BiH, see http://www.ceps.be/files/ESF/Monitor11.php

45 On the handover between the EU and NATO, see Alic (2004: 28-34), Eichberg and Venneri (2004b).

46 At present, the EC delegation to BiH involves the work of over 100 officers, and it has thus become one of the largest EC missions abroad. For further details, see http://www.delbih.ec.europa.eu/

47 Some interesting consideration on the OHR/EUSR can be found in Recchia (2007).

48 On the methodology employed by The Dayton Project, see Hayden (2006).

49 Interview with an Official of the DG Enlargement - EU Commission (Brussels, 8 June 2007). The SAP was officially launched in November 2000 at the Zagreb Summit.

50 Interview with Luca Gori, Italian Permanent Representation to the EU (Brussels, 26 March 2007).

51 Interview with Michael Aldaya, EU Commission – DG Enlargement (Brussels, 24 September 2007).

52 According to an Italian diplomat: ‘if the EU has not had yet any role with regards to the Constitutional debate in Bosnia this can be understood by looking at the attitude of the Commission. At the very beginning, the Commission was particularly reluctant to think that it might have had some kind of interference with regards to the Bosnian constitutional debate; even the mere possibility of acting to facilitate the talks was seen as a task falling outside the possibility, the powers, and the intensions of the Commission. The constitutional restructuring of the Bosnian state is not seen as essential per se, what is truly essential for the Commission in particular is that reform for a more functional state takes place through the SAP’. Interview with Luca Gori, Italian Permanent Mission to the EU (Brussels, 26 March 2007).

53 Interview with Doris Pack, MEP (Brussels, 7 July 2007).

54 For some interesting information on Lajčàk’s background and nomination as EUSR/HR, see (Alic 2007)

55 Interview with an official from the EUSR legal department (Sarajevo, 26 June 2007).

56 The following analysis has been developed by monitoring since early 2007 the work of the EP Foreign Affairs Committee, its Sub-Committee on Security and Defence, the Delegation for SEE, as well as the preparatory work and final 9th EP-Bosnia and Herzegovina Interparliamentary Meeting.

57 Doris Pack (MEP), 9th EP-BiH Inter-parliamentary Meeting, Brussels (June 28, 2007).

58 Hannes Swoboda (MEP), 9th EP-BiH Inter-parliamentary Meeting, Brussels (June 28, 2007).

59 Ivo Miro Jović (Bosnian MP, member of the HDZ, first vice-president of the Joint Committee for European Integration of the Bosnian Parliament), 9th EP-BiH Inter-parliamentary Meeting, Brussels (June 28, 2007).

60 Interview with a senior US diplomat, serving at the political section of the US Embassy to BiH in 2005 (Rome, 12 November 2009).

61 Amb. Donald S. Hays was Deputy High-Representative for almost four years, precisely between July 2001 and March 2005.

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62 Interview with a senior US diplomat, serving at the political section of the US Embassy to BiH in 2005 (Rome, 12 November 2009).

63 A more detailed analysis of the content of the April Package has been made by Roberto Belloni (2007: 54-58) and, more recently, by Jens Woelk (2008: 241-53).

64 Interview with a senior US diplomat, serving at the political section of the US Embassy to BiH in 2005 (Rome, 12 November 2009).

65 Interview with Fabrizio Di Michele, Italian Permanent Mission to the EU (Brussels, 1 October 2007).

66 Reference to this last mediation is provided in section 3.3.

67 It is important to stress that, between these two extremes, Tihić launched the proposal to reduce entity voting only to the competences shared at state level.

68 Dirk Lange is Head of Unit C1 - Albania, Bosnia & Herzegovina at the DG Enlargement of the EC.

69 Interview with an Official from the EUSR legal department (Sarajevo, 26 June 2007).

70 Apart from Sarajevo, Vice-President Biden actually made a broader tour of the Western Balkans on May 19-21, and he also visited Belgrade and Pristina.

71 The organization of retreats to push Bosnian political leaders to reach consensus on key reform processes is not new. This tradition was inaugurated in 2003, in the weeks that preceded the EU/Western Balkans Thessaloniki Summit. In April of that year, the representatives of the International Community in BiH gathered with local party leaders, governmental officials and MPs in the city of Bjelasnica for a two-day retreat (cf. Chapter III, section 2). The main outcome of the meeting was a declaration on key reform and a ‘wish list’ sent to the attention of the EU in view of the Thessaloniki initiative (OHR 2003b).

72 E-mail communication to the author from a EUSR Official (15 September 2009).

73 The paragraph dedicated to this issue proceeds as follow: ‘The Court observes that in order to be eligible to stand for election to the House of Peoples of Bosnia and Herzegovina, one has to declare affiliation with a “constituent people”. The applicants, who describe themselves to be of Roma and Jewish origin respectively and who do not wish to declare affiliation with a “constituent people”, are, as a result, excluded (see paragraph 11 above). The Court notes that this exclusion rule pursued at least one aim which is broadly compatible with the general objectives of the Convention, as reflected in the Preamble to the Convention, namely the restoration of peace. When the impugned constitutional provisions were put in place a very fragile cease-fire was in effect on the ground. The provisions were designed to end a brutal conflict marked by genocide and “ethnic cleansing”. The nature of the conflict was such that the approval of the “constituent peoples” (namely, the Bosniaks, Croats and Serbs) was necessary to ensure peace. This could explain, without necessarily justifying, the absence of representatives of the other communities (such as local Roma and Jewish communities) at the peace negotiations and the participants' preoccupation with effective equality between the “constituent peoples” in the post-conflict society’ (ECtHR 2009: §45).

74 It was not by chance that the exercise was undertaken under the Swedish Presidency of the EU, with Carl Bildt, former HR, playing all his diplomatic cards in Brussels to bring BiH among the top priorities of the EU agenda.

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75 Paul Szasz was a legal expert with a fifty-year experience in several UN institutions, agencies and field missions (these include: IAEA, IFAD, UNIDO end the UN Legal Department in New York) and the World Bank. Between 1992 and 1995, he served as legal adviser to SoS Cyrus R. Vance and Lord Owen and then played a key role in the preparation of the constitutional framework that was attached to the DPA.

76 In this capacity, Amb. Botsan-Kharchenko was member of the ‘Troika for the negotiations on the future of Kosovo’ with the EU envoy the German diplomat Wolfgang Ischinger and the US representative Amb. Frank Wisner.

77 The Bosnian team for the negotiation of the SAA was created at the end of 2005 and put under the guidance of Igor Davidovic, former BiH ambassador to Washington (Prienda 2005).

78 For further details on the EU enlargement to SEE, see http://ec.europa.eu/enlargement/potential-candidate-countries/bosnia_and_herzegovina/eu_bosnia_and_herzegovina_relations_en.htm

79 A complete list of the actions undertaken in this specific field by the HR/EUSR in 2004 is available at http://www.ohr.int/decisions/war-crimes-decs/archive.asp?m=&yr=2004

80 The details of this decisions are available at http://www.ohr.int/decisions/war-crimes-decs/default.asp?content_id=32753

81 The unification of the Bosnian army and the creation of a defense ministry at state leave are considered as one of the most important successes achieved during the tenure of Paddy Ashdown. However, it should be noticed that the old armies still exist at regimental level as traditional units.

82 Article 2 of Ashdown’s decision listed the auspices of the police reform: ‘The Commission shall fulfil its mandate in accordance with the following principles: 1. Ensuring that policing in Bosnia and Herzegovina is structured in an efficient and effective manner; 2. Ensuring that the Institutions of Bosnia and Herzegovina are able to carry out fully and effectively their law enforcement responsibilities; 3. Ensuring that policing in Bosnia and Herzegovina is cost-effective and financially sustainable; 4. Ensuring that policing staffing levels and conditions in Bosnia and Herzegovina are in line with European best practice and cognizant of prevailing social factors; 5. Ensuring that policing in Bosnia and Herzegovina generally reflects the ethnic structure of the population of Bosnia and Herzegovina; 6. Ensuring that policing in Bosnia and Herzegovina is adequately protected from improper political interference; 7. Ensuring that policing will be discharged in accordance with democratic values, international human rights standards and best European practices; 8. Ensuring that policing will be delivered through inclusive partnership with the community and civil society; 9. Ensuring that policing will be discharged within a clear framework of accountability to the law and the community; 10. Ensuring that the effective capacity to investigate war crimes is guaranteed throughout the entire territory of Bosnia and Herzegovina; 11. Ensuring the examinations of necessary linkages to broader justice system matters; 12. Ensuring that Bosnia and Herzegovina as a state can effectively participate as a partner with other EU states in common actions, planning and operations on internal affairs matters’.

83 Interview with an Official from the OSCE (Sarajevo, 11 November 2007).

84 Interview with Ms. Anna Ibrisagic, MEP (Brussels, 3 October 2007).

85 The acronym SBiH indicates the Party for Bosnia and Herzegovina (Stranka Za Bosnu i

Hercegovinu), which is guided by the Bosniak leader Haris Silajdžić. SNSD or Alliance of Independent Social Democrats (Savez Nezavisnih Socijaldemokrata) is guided by the Bosnian Serb Prime Minister of RS Milorad Dodik.

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86 Interview with a diplomat serving in the COWEB, Ms. Nadine Athanassiadou, Permanent Representation of Greece to the EU (Brussels, 21 September 2007).

87 Interview with Giulio Zanni, Political Adviser and Acting Head Political Economic Section at the EC Delegation to Bosnia (Sarajevo, 14 November 2007).

88 Unofficial translation from the TV broadcast of the ceremony.

89 The Srpski/Bosanski Brod oil refinery had been seriously damaged at wartimes. First re-opened on May 2000, the refinery started to produce lead-free gas and euro-diesel in mid-2004.

90 The whole text appeared on the OHR website proceeds as follows. ‘Myth One: Police restructuring is a step towards abolishing the Entities. Fact: No it isn’t. Police re-structuring is only about establishing a professional police service and will not abolish the Entities. There is no plan to abolish the Entities. Myth Two: Police restructuring will abolish the RS Ministry of Interior. Fact: No. There is nothing being proposed that requires the abolition of the RS Ministry of Interior. Anyone who says this is mistaken. Myth Three: The High Representative will impose police restructuring. Fact: No. He won’t and can’t. It will be up to BiH’s leaders to decide whether to give their agreement. However, police restructuring is an EU requirement: if political leaders say no to it, they will say no to the EU. Myth Four: It means centralizing policing in Sarajevo. Fact: No. Police restructuring will have de-centralized local police services responsible for your local area. To help protect local interests, your local area will have its own Community Oversight Council. Also, as with the ITA, there is no reason the location of the new local police service must be in Sarajevo. Myth Five: There are no EU requirements for police reform. Fact: Not true. The EU has said clearly that BiH must adopt police restructuring if it is to move forward towards the EU. The 3 key principles must be adhered to and the Police Restructuring Commission report is one way to do this’.

91 One of the founders of the Party of Democratic Action (SDA), Sulejman Tihić served from October 2002 until end 2006 as Bosniak representative in the tripartite presidency of the country.

92 Interview with Ms. Sladjana Pantelić, Permanent Mission of The Netherlands to the EU, Member of the COWEB (Brussels, 17 December 2007).

93 The Italian politician Franco Frattini was then the EU Commissioner for Justice, Freedom and Security and vice-President of the European Commission.

94 The Decalogue proceeds as follows: (1) Police restructuring will make police accountable to the citizen first not to politics. (2) Police restructuring will make BiH safer for citizens, tougher for criminals. (3) Police restructuring will get rid of the barriers that help criminals and hinder the police. (4) Police restructuring will cut bureaucracy and beef up crime fighting. (5) Police restructuring will rationalize the use of scarce resources. (6) Police restructuring will give the police modern

equipment to fight crime. (7) Police restructuring is a European Union requirement. (8) Without police restructuring, there will be no change in European visa requirements for BiH citizens. (9) Police restructuring will mean new career opportunities for police officers across BiH. (10) Police restructuring will mean that a police officer will receive the same pay for the same job anywhere in

BiH. Police restructuring is common sense.

95 The laws have been published on the ‘Official Gazette of Bosnia and Herzegovina’, 36/08.

96 Interview with an Official from the EUSR (Sarajevo, 12 June 2008).

97 Interview with Gen. Vincenzo Coppola (Sarajevo, 12 June 2008).

98 Interview with Tobias Flessemkemper, EUPM (Sarajevo, 21 November 2007).

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99 For instance, meeting the members of the BiH SAA negotiation team, it was no surprise to find out that the majority of them had received advanced university education in western European universities (particularly at the EU-funded College of Europe).

100 This French adjective is used by constitutional historians to refers to a custom in XVIII and early XIX century Europe, whereby self-professed enlightened kings conceded as a favour, in a top-down manner, constitutional schemes to the people they ruled.

101 In 1991, when confronted by the breaking-up of Yugoslavia, Jacques Poos, foreign minister of Luxembourg then holding the EU Presidency, made the unfortunate prediction that ‘the hour of Europe’ had eventually come.